[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]





 THE WASHINGTON AQUEDUCT AND THE EFFECTS OF ITS DISCHARGE ON THE C&O 
  CANAL NATIONAL HISTORIC PARK AND THE ENDANGERED SHORTNOSE STURGEON

=======================================================================

                           OVERSIGHT HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             June 19, 2002

                               __________

                           Serial No. 107-131

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                   George Miller, California
  Vice Chairman                      Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana     Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
Elton Gallegly, California           Eni F.H. Faleomavaega, American 
John J. Duncan, Jr., Tennessee           Samoa
Joel Hefley, Colorado                Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado              Calvin M. Dooley, California
Richard W. Pombo, California         Robert A. Underwood, Guam
Barbara Cubin, Wyoming               Adam Smith, Washington
George Radanovich, California        Donna M. Christensen, Virgin 
Walter B. Jones, Jr., North              Islands
    Carolina                         Ron Kind, Wisconsin
Mac Thornberry, Texas                Jay Inslee, Washington
Chris Cannon, Utah                   Grace F. Napolitano, California
John E. Peterson, Pennsylvania       Tom Udall, New Mexico
Bob Schaffer, Colorado               Mark Udall, Colorado
Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
Mark E. Souder, Indiana              Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon                  Hilda L. Solis, California
Michael K. Simpson, Idaho            Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado         Betty McCollum, Minnesota
J.D. Hayworth, Arizona
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                      Tim Stewart, Chief of Staff
           Lisa Pittman, Chief Counsel/Deputy Chief of Staff
                Steven T. Petersen, Deputy Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 19, 2002....................................     1

Statement of Members:
    Christensen, Hon. Donna M., a Delegate in Congress from the 
      Virgin Islands.............................................     6
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     1
        Prepared statement of....................................     2
    Otter, Hon. C.L. ``Butch'', a Representative in Congress from 
      the State of Idaho.........................................    53
    Radanovich, Hon. George P., a Representative in Congress from 
      the State of California....................................     3
        Prepared statement of....................................     5
        Washington Times article ``EPA says toxic sludge is good 
          for fish'' submitted for the record....................    55
    Rehberg, Hon. Dennis R., a Representative in Congress from 
      the State of Montana, Prepared statement of................    49

Statement of Witnesses:
    Grumbles, Benjamin H., Deputy Assistant Administrator for 
      Water, U.S. Environmental Protection Agency................    32
        Prepared statement of....................................    34
    Izzo, Dominic, Principal Deputy Assistant Secretary of the 
      Army for Civil Works, U.S. Army Corps of Engineers.........    21
        Prepared statement of....................................    29
        Letter and report ``Washington Aqueduct Sediment 
          Discharge-- Report to Congress'' submitted for the 
          record.................................................    24
    Keeney, Timothy R.E., Deputy Assistant Secretary for Oceans 
      and Atmosphere, National Oceanic and Atmospheric 
      Administration, U.S. Department of Commerce................    12
        Prepared statement of....................................    15
        Letter to the National Marine Fisheries Service submitted 
          for the record.........................................    14
        Two diagrams showing shortnose sturgeon, NPDES and 
          drinking water facilities submitted for the record.....    18
        Response to questions submitted for the record...........    19
        Comparison of the 2001 Klamath River and 2002 Potomac 
          River Biological Opinions submitted for the record.....    70
    Murphy, Donald W., Deputy Director, National Park Service, 
      U.S. Department of the Interior............................     8
        Prepared statement of....................................    10

 
  OVERSIGHT HEARING ON THE WASHINGTON AQUEDUCT AND THE EFFECTS OF ITS 
 DISCHARGE ON THE C&O CANAL NATIONAL HISTORIC PARK AND THE ENDANGERED 
                           SHORTNOSE STURGEON

                              ----------                              


                        Wednesday, June 19, 2002

                     U.S. House of Representatives

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Committee met, pursuant to call, at 10:21 a.m., in room 
1334, Longworth House Office Building, Hon. James V. Hansen 
(Chairman of the Committee) presiding.

  STATEMENT OF THE HON. JAMES V. HANSEN, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF UTAH

    The Chairman. The Committee will come to order.
    We apologize for starting late. We don't like to do that in 
this Committee, but we had a journal vote. I am sure more 
members will be dribbling in.
    This morning the Committee on Resources is here to examine 
the effects of the Washington Aqueduct discharge on the C&O 
Canal National Historic Park and the endangered shortnose 
sturgeon. I would like to begin by welcoming our witnesses here 
today. I would also like to thank the members of this Committee 
who have brought this issue to the attention of the full 
Committee on Resources.
    For those of us on this Committee, the issue extends beyond 
the Washington Aqueduct. For many years, those of us who 
represent rural areas in the west have had a difficult time 
understanding how those living in urban areas can be so 
unfamiliar with the reaches and impacts of the Endangered 
Species Act and other environmental acts.
    I appreciate that this forum today will provide the 
Committee with an opportunity to examine the extent to which 
this has been the result of agencies failing to enforce laws 
equally across the board. We have long suspect that if laws, 
such and the Endangered Species Act were enforced the way they 
are in the rural west that the urban parts of the country would 
simply not stand for it.
    As these witnesses are well aware, agencies enjoy a broad 
degree of discretion in choosing where they are going to focus 
their attention and resources in enforcing the environmental 
laws.
    It has been clear to many members of this Committee that 
the enforcement agencies simply do not pursue their duties with 
the same vigor and force in the urban areas of the east as 
their counterparts do in the rural west. Maybe this is due to 
the fact that the same unequal standard is applied 
environmental groups who love the tool of litigation, are much 
more willing to stand over the shoulder of the enforcement 
agencies of the west and drag them into court if they do not 
share their vigor than they are back here in the nation's 
capital.
    Nevertheless, the laws of this nation require that the 
standard be equally applied and it is the duty of this 
Committee to see that when the law in not being equally applied 
that we raise the issue.
    Today, we will be interested to learn how the Washington 
Aqueduct, operated by the Army Corps of Engineers is permitted 
by the EPA to discharge limitless amounts of sediment, together 
with heavy amounts of additives, such as aluminum, directly 
into the C&O Canal National Historic Park.
    We have heard complaints about this practice from all 
quarters, including park officers complaining about heavy 
amounts of chlorine in the discharges, fishermen complaining 
about its impact upon the fish, and local recreationists about 
the smell.
    Once again, I appreciate the presence of the witnesses here 
today and the opportunity for the Committee to take a close 
look at this issue.
    [The prepared statement of Mr. Hansen follows:]

    Statement of The Honorable James V. Hansen, a Representative in 
                    Congress from the State of Utah

    Good morning. This hearing will come to order.
    This morning the Committee on Resources is here to examine the 
effects of the Washington Aqueduct discharges on the C & O Canal 
National Historic Park and the endangered shortnose sturgeon. I'd like 
to begin by welcoming our witnesses here today. I'd also like to thank 
the members of this Committee who have brought this issue to the 
attention of the full Committee on Resources.
    For those of us on this Committee, this issue extends beyond the 
Washington Aqueduct. For many years, those of us who represent rural 
areas in the west have had a difficult time understanding how those 
living in urban areas can be so unfamiliar with the reaches and impacts 
of the Endangered Species Act and other environmental laws.
    I appreciate that this forum today will provide the Committee with 
an opportunity to examine the extent to which this has been a result of 
agencies failing to enforce laws equally across the board. We have long 
suspected that if laws, such as the Endangered Species Act, were 
enforced the way they are in the rural west that the urban parts of the 
country would simply not stand for it. As these witnesses are well 
aware, agencies enjoy a broad degree of discretion in choosing where 
they are going to focus their attention and resources in enforcing 
environmental laws.
    It has been clear to many members of this Committee that the 
enforcement agencies simply do not pursue their duties with the same 
vigor and force in urban areas of the east as their counterparts do in 
the rural west. Maybe this is due to the fact that the same unequal 
standard is applied by the extreme environmental groups, who love the 
tool of litigation, are much more willing to stand over the shoulder of 
the enforcement agents of the west and drag them into court if they do 
not share their vigor than they are back here in the nation's capital. 
Nevertheless, the laws of this nation require that the standard be 
equally applied and it is the duty of this Committee to see that when 
the law is not being equally applied that we raise the issue.
    Today, we will be interested to learn how the Washington Aqueduct, 
operated by the Army Corps of Engineers is permitted by the EPA to 
discharge limitless amounts of sediment, together with heavy amounts of 
additives, such as aluminum, directly into the C & O Canal National 
Historic Park. We have heard complaints about this practice from all 
quarters, including park police officers complaining about heavy 
amounts of chlorine in the discharges, fisherman complaining about its 
impacts upon the fish, and local recreationists about the smell.
    Once again I appreciate the presence of the witnesses here today 
and the opportunity for the Committee to take a close look at this 
issue.
                                 ______
                                 
    The Chairman. With that, Mr. Radanovich, do you have an 
opening statement as the Subcommittee Chairman?
    Mr. Radanovich. I do, thank you.

   STATEMENT OF HON. GEORGE RADANOVICH, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Radanovich. Mr. Chairman, I appreciate your leadership 
on so many of the issues that are important to this country, 
and particularly in the west, and especially on this issue. I 
am very pleased that this oversight hearing is being held and 
that this important matter is being brought to the attention of 
the full Committee on Resources.
    This is an issue that goes to the heart of what we do here 
in this Committee and I think that everybody would agree that 
one of the most fundamental principles upon which this nation 
was founded and is operated on is that the laws of this country 
must be equally enforced.
    The American people expect this and they expect their 
Representatives in Congress to insist on an equal standard. As 
any representative of a western State or a rural State can 
attest, there has been no lack of vigor in how the 
environmental laws are enforced in the west or in rural parts 
of the country.
    Among those of us in the west there is a great realization 
that the Federal enforcement agencies have seen fit to 
consistently and vigorously interpret these laws, including the 
Endangered Species Act, in the strictest manner possible, even 
when it has had to trump human life.
    In addition, many environmental groups have held the heavy 
hand of litigation over the heads of agencies to ensure that 
they do so. This principle of equal enforcement of our 
environmental laws is what brings us here today. In the case of 
the Washington Aqueduct and its impact upon the habitat of the 
endangered shortnose sturgeon and the resources of the C&O 
Canal National Historic Park, environmental laws in our 
nation's capital have simply not been enforced the way they 
have been in the rural west.
    Since the oversight hearing held to examine these issues in 
October of 2001 by the Subcommittee on National Parks, 
Recreation and Public Lands, this unequal standard has become 
even more clear. I remain baffled as to how an agency such as 
the EPA which prides itself on its role as the protector of the 
environment, who for over 20 years has refused to use their 
authority to simply impose some minimum limitations on the 
enormous volume of sludge dumped directly through a unit of a 
national park system and into what is considered to be the 
primary, if not the only spawning habitat for the endangered 
shortnose sturgeon, despite the fact that the National Marine 
Fisheries Service have stated that the fish is generally 
present in the Potomac River, which is a National Heritage 
River.
    Let me reiterate again, there are absolutely no limitations 
on the amount of sludge that can be dumped directly upon this 
habitat and into this park.
    Let me also state up front that we are not asking them to 
do something that they would not otherwise be willing to do and 
that they have continued continually to impose stricter 
regulations throughout the country.
    In 1995, a draft MPDES permit was issued by the EPA which 
placed the same kind of limitations that we are asking them to 
impose today. In fact, these are the same standards that every 
other water treatment plant in this region abides by; none of 
which, I might add, discharge into a National Park unit. But 
for some unknown reason, the draft permit was pulled and today 
we have a draft permit in its place that has removed those 
limitations and maintains the status quo.
    Why? Did the EPA yield to a powerful interest? Is that the 
same powerful interest still exerting that pressure on the 
agency today? Why then, when EPA's own personnel have described 
the sludge as the most toxic discharge they have ever seen, 
does the practice continue?
    Why, when rural Americans in rural parts of this country 
are required to meet these standards of modernization, is it 
not required of an affluent area and our Federal agencies?
    Why have multiple reports by Park Service law enforcement 
officials including one where the officer describes the 
discharge as ``highly chlorinated discharge, so strong as to 
burn their eyes, nose and throats from 30 yards up stream'' 
been met with absolutely no response from the Park Service, 
despite chlorine's known impact on aquatic life?
    Why is it that the Park Service has not at least expressed 
opposition to the practice? They have certainly used the bully 
pulpit before to express their opposition to impacts on the 
parks that originate outside their borders.
    This is a direct dumping of sludge into a National Park 
unit. Why has the Park Service remained silent in light of the 
clear impacts upon the park and the complaints from the 
visitors?
    Why is it that the weight of the Endangered Species Act is 
not brought to bear here, but its full weight is continually 
felt over and over and over in rural areas of the United 
States, without regard to human impact?
    Why are the Federal agencies just now engaging in formal 
consultation after they have known about this situation for 
over 20 years, just now engaging in formal consultation under 
the Endangered Species Act when NPDES has stated that the fish 
is generally present in the area for years?
    I am hopeful that the witnesses today will provide answers 
for these questions. I continually remain hopeful that as this 
inherited issue is brought to the full attention to the Bush 
Administration that they will proactively take action to ensure 
that our laws are equally enforced so that the folks who 
inhabit the rural parts of this country can know that the full 
weight of the laws that routinely are brought to bear on their 
lives and communities are also being enforced on the urban 
parts of our country. The principle of equal application of the 
law demands it.
    Mr. Chairman, again, I want to thank you for bringing this 
to the full Resources Committee. I look forward to the 
testimony of the witnesses.
    [The prepared statement of Mr. Radanovich follows:]

 Statement of The Honorable George P. Radanovich, a Representative in 
                 Congress from the State of California

    Thank you Mr. Chairman. I appreciate your leadership on so many 
issues that are important to the country and particularly the West, 
including this issue.
    I am pleased that this oversight hearing is being held and that 
this important matter is being brought to the attention of the full 
Committee on Resources. This is an issue that goes to the heart of what 
we do here in this Committee. I think that everyone would agree that 
one of the most fundamental principles upon which this nation was 
founded and has operated is that the laws of this country are enforced 
equally. The American people expect this and they expect their 
representatives in Congress to insist on an equal standard. As any 
representative of a western state can attest, there has been no lack of 
vigor in how environmental laws are enforced in the west. Among those 
of us in the west, there is a great realization that the Federal 
enforcement agencies have seen fit to consistently and vigorously 
interpret these laws, including the Endangered Species Act in the 
strictest manner possible, even when it has had to trump human life. In 
addition, environmental groups have held the heavy hand of litigation 
over the heads of the agencies to ensure that they do so.
    This principle of the equal enforcement of our environmental laws 
is what brings us here today. In the case of the Washington Aqueduct 
and its impact upon the habitat of the endangered shortnose sturgeon 
and the resources of the C & O Canal National Historic Park, 
environmental laws in our nation's capital have simply not been 
enforced the way they have been in the rural west. Since the oversight 
hearing held to examine these issues in October of 2001 by the 
Subcommittee on National Parks, Recreation, and Public Lands, this 
unequal standard has become even more clear. I remain baffled as to how 
an agency such as the EPA, which prides itself on its role as the 
protector of the environment, can continue to refuse to use their 
authority to simply impose some minimum limitations on the enormous 
volume of sludge dumped directly through a unit of the national park 
system and into what is considered to be the ``primary, if not only 
spawning habitat'' for the endangered shortnose sturgeon, despite the 
fact that the National Marine Fisheries Service has stated that the 
fish is ``generally present'' in the Potomac River.
    Let me reiterate that again. There are absolutely no limitations on 
the amount of sludge that may be dumped directly upon this habitat and 
into the park. Let me also state up front that we are not asking them 
to do something they would not otherwise be willing to do and that they 
have not continually imposed throughout the country. In 1995 a draft 
NPDES permit was issued by the EPA which placed the same kind of 
limitations that we are asking them to impose today. In fact, these are 
the same standards that every other water treatment plant in the region 
abides by, none of which I might add, discharge into a national park 
unit. But for some unknown reason, that draft permit was pulled and 
today we have a draft permit in its place that has removed those 
limitations and maintains the status quo.
    Why? Did the EPA yield to a powerful interest? Is that same 
powerful interest still exerting that pressure on the agency today? 
Why, when EPA's own personnel have described the sludge as ``the most 
toxic discharge [they] have seen'' does the practice continue? Why, 
when smaller rural areas of the country are required to meet these 
standards of modernization, is it not required of an affluent area and 
our Federal agencies? Why have multiple reports by Park Service law 
enforcement officials, including one where the officer describes the 
discharge as a ``highly chlorinated discharge'' so strong as to burn 
their ``eyes, nose, and throat from 30 yards upstream'' been met with 
no response from the Park Service, despite chlorine's known impact upon 
aquatic life? Why is it that the Park Service has not at least 
expressed opposition to the practice? They have certainly used the 
bully pulpit before to express their opposition to impacts upon the 
parks that originate outside their borders. This is a direct dumping of 
sludge into a national park unit. Why has the Park Service remained 
silent in light of the clear impacts upon the park and complaints from 
visitors? Why is it that the weight of the Endangered Species Act is 
not being brought to bear here, but its full weight is continually felt 
over and over and over in rural areas of the west, without regard to 
its human impact? Why are the Federal agencies not engaged in formal 
consultation under the ESA when NMFS has stated that the fish is 
``generally present'' in the area? Why are we now hearing from the 
former EPA permit writer stating that the discharges are clearly 
illegal and violate not only EPA regulations, but also the Clean Water 
Act and yet the EPA continues to maintain that this permit is nothing 
unusual?
    I am hopeful that the witnesses here today will be able to provide 
answers to these questions. I continually remain hopeful that as this 
inherited issue is brought to the full attention of the Bush 
Administration that they will proactively take action to ensure that 
our laws are equally enforced so that the folks who inhabit the rural 
areas of this country can know that the full weight of the laws that 
routinely are brought to bear upon their lives and communities are also 
being enforced in the more urban areas of our nation. The principle of 
the equal application of the law demands it.
    Once again, thank you Mr. Chairman.
                                 ______
                                 
    The Chairman. I thank the gentleman from California.
    The gentlelady from the Virgin Islands, the Ranking Member 
of the Subcommittee.
    Ms. Christensen. Thank you, Mr. Chairman.

  STATEMENT OF HON. DONNA CHRISTENSEN, A DELEGATE IN CONGRESS 
                    FROM THE VIRGIN ISLANDS

    Ms. Christensen. Mr. Chairman, the environmental 
degradation within our National Park system causes by various 
forms of pollution is a chronic and pressing issue. As a 
result, we welcome the Committee's exercising its oversight 
jurisdiction to investigate this persistent problem.
    As you are aware, however, this is the second oversight 
hearing conducted regarding operation of the Washington 
Aqueduct following an identical hearing before the National 
Parks, Recreation and Public Lands Subcommittee less than 9 
months ago.
    Of all the environmental threats facing the 385 units of 
the National Park system, this is the only one to receive this 
kind of energetic focus. Thick smog caused by nearby coal-fired 
power plants hang over the Great Smokey Mountains and Big Ben 
National Parks.
    Industrial and agricultural runoff spews poisonous amounts 
of phosphorus, nitrogen and mercury into the waters of the 
Everglades National Parks.
    Cruise ships dump raw sewage, oily bilge water and toxic 
chemicals into Glacier Bay. Other units have leaking 
underground storage tanks encroaching road and subdivision 
development and the list goes on and on, and yet we have not 
held one oversight hearing on those issues.
    While the operation of the Washington Aqueduct may raise 
serious issues, it is not the single most important pollution 
issue facing our National Parks. Other issues are more serious 
and more easily remedied and we would welcome a similar level 
of Committee interest in resolving those challenges as well.
    As to the Washington Aqueduct, our Subcommittee hearing on 
this topic outlined the problem well. In creating the C&O Canal 
National Historic Park, Congress grandfathered the culverts 
that transport this sediment under the park and back into the 
river.
    As a result, neither the enabling statute or any other 
statue of which we are aware grants the National Park Service 
the authority to alter the way in which the aqueduct is 
operated. If this practice is harming the park resources, then 
we have more blame in Congress than anywhere else.
    The National Marine Fisheries and U.S. Fish and Wildlife 
Service have fulfilled their responsibilities by trying to 
establish whether or not any endangered species are present in 
the Potomac and providing that information to the Corps and 
EPA.
    As a result, that information is being incorporated, as I 
understand it, into the new permit. EPA is following the 
process outlined in the Clean Water Act to reissue a NPDES 
permit for the aqueduct. The agency has hired independent 
contractors to conduct scientific evaluations of the effects of 
returning this sediment to the river.
    Those evaluations have found little or no harm, but their 
recommendations regarding the theoretical effects of the young 
sturgeon are being incorporated into the new permit anyway.
    For their part, the Army Corps of Engineers operates a 
facility according to existing law and EPA permit. It should be 
noted that the last two agencies, the EPA and the Corps, are 
not within the jurisdiction of this Committee.
    The current situation is far from ideal, and I do 
appreciate the concern about the smell of the discharge. 
However, it is not clear that this Committee would have these 
agencies do differently. Nor is it clear that new information 
there is to be gathered on this topic.
    It is our hope that after the second hearing we can move 
forward to broaden the scope of our oversight to include the 
myriad other pollution problems facing our national parks over 
which the Committee does have jurisdiction.
    We thank our witnesses for their time today and look 
forward to their testimony.
    Unfortunately, our Ranking Member, Mr. Rahall, couldn't be 
here this morning, but he wanted me to recognize, on his behalf 
Ben Grumbles with the EPA, since for many years Mr. Grumbles 
was a staffer on the Transportation and Infrastructure 
Committee on which Mr. Rahall also serves. He was always very 
helpful to both Democrats and Republicans on that Committee.
    Welcome to you, Mr. Grumbles, and to all of our witnesses 
this morning.
    The Chairman. I thank the gentlelady.
    The Chairman. We have a panel of four experts with us at 
this time, Mr. Don Murphy, Deputy Director, National Park 
Service; Tim Keeney, Deputy Assistant Secretary for Oceans and 
Atmosphere; Dominic Izzo, Principal Deputy Assistant Secretary 
of the Army for Civil Works; and Ben Grumbles, Deputy Assistant 
Administrator for Office of Water, Environmental Protection 
Agency.
    As you gentlemen can see, you have these little things like 
this in front of you. That gives you 5 minutes. I know you can 
probably talk for an hour or so on your issues, so let's see if 
you can--
    Mr. Radanovich. Mr. Chairman, if I may interrupt, is it 
possible to play just a two, two or 3-minute video before we 
begin the testimony?
    The Chairman. The gentleman asks unanimous consent to play 
a video for 2 minutes.
    [Video played.]
    Mr. Radanovich. Thank you, Mr. Chairman.
    The Chairman. Well, let's hope the beaver makes it.
    I apologize to you folks who are standing. We normally, for 
the full Committee, don't use this room. We use the other room, 
but it is being remodeled right now.
    As I was saying, gentlemen, there is this little thing in 
front of you. We try to hold you to 5 minutes. That is about a 
minute per page if you talk fast.
    So, we will start with you, Mr. Murphy. Thank you for being 
here and thank all of you for being here.
    Your full testimony will be included in the record if you 
want to abbreviate your testimony.
    I will turn the gavel over to the Chairman of the 
Subcommittee on Public Lands and Recreation and whatever else 
you do.

  STATEMENT OF DONALD MURPHY, DEPUTY DIRECTOR, NATIONAL PARK 
                            SERVICE

    Mr. Murphy. Thank you, Mr. Chairman. I am Donald Murphy, 
Deputy Director of the National Park Service. It is good to see 
you again.
    Thank you for the opportunity to appear before this 
Committee to present the views of the Department of Interior on 
discharges from the Washington Aqueduct on the Chesapeake & 
Ohio Canal and through the C&O National Historic Park.
    The U.S. Army Corps of Engineers operates the Washington 
Aqueduct facility, which provides potable water to the District 
of Columbia and certain jurisdictions in Northern Virginia. The 
United States Environmental Protection Agency regulates the 
discharges from this facility within the District of Columbia.
    Although the Department of Interior does not bear primary 
responsibility for the operation of the Washington Aqueduct 
facility or the regulation of its discharges, we take very, 
very seriously our stewardship responsibilities for the 
resources entrusted to our care.
    Since we became aware of environmental concerns regarding 
the Washington Aqueduct facility operation, we have immersed 
ourselves in the complex legal and technical issues associated 
with them and are committed to working with other agencies and 
jurisdictions to address the problems and concerns.
    Recently, EPA provided a key opportunity for all concerned 
with the impacts of the Washington Aqueduct facility. On March 
28, 2002, EPA proposed a revised discharge permit for the 
facility under the National Pollution Discharge Elimination 
System known as NPDES. The Department of Interior has prepared 
comments on the proposed permit.
    As an interim goal, the Department supports the 
approximately 35 percent further reduction of sediments 
discharged to the Potomac River proposed in the revised permit. 
However, the Department feels there is a need for additional 
research in monitoring of the discharge impacts.
    With respect to the United States Fish and Wildlife 
Service, involvement in the Washington Aqueduct issue, the Fish 
and Wildlife Service has stewardship responsibility for certain 
Potomac River species using the best scientific information 
available. The Fish and Wildlife Service has already determined 
that except for occasional transient individuals, endangered 
species under the jurisdiction of the Fish and Wildlife Service 
are neither present, near nor likely to be affected by the 
discharges for purposes of the Endangered Species Act.
    Please note that the National Marine Fisheries Service, not 
the Fish and Wildlife Service, have sole regulatory authority 
over the shortnose sturgeon. If any new information that has 
not already been considered becomes available suggesting 
affects the listed species or their designated critical 
habitat, the Fish and Wildlife Service will determine if 
Section 7 consultation under the Endangered Species Act must be 
reinitiated.
    In addition to ESA listed species, the Fish and Wildlife 
Service has statutory authority and trust responsibilities with 
respect to a number of Potomac River migratory fish species, 
Striped Sass, Alewife, Blueback Herring, and American Shad.
    In 1998, EPA requested that the Fish and Wildlife Service 
convene a panel of fishery experts to recommend short-term 
measures to protect fish potentially impacted by the 
discharges, while the discharge permit was being reissued.
    In 1999, the panel recommended among other measures a time 
of year restriction on the discharges that correspond to 
sensitive breeding and migratory seasons. EPA has included this 
restriction in its current draft permit.
    The Fish and Wildlife Service Environmental Contaminants 
Branch also provided limited technology assistance to EPA in 
the development of a work plan for a 3-year discharge study. 
The Fish and Wildlife Service believes additional studies 
designed to assess the direct and cumulative impacts on aquatic 
resources under the Fish and Wildlife Service jurisdiction are 
needed. The Fish and Wildlife Service is willing to provide 
technical assistance with respect to these studies.
    With respect to the National Park Service involvement in 
the Washington Aqueduct, the facility discharges flow through 
conduits traversing the C&O Canal National Historic Park, 
managed at the National Park Service. These conduits empty 
either on park land near the Potomac River or the riverbed 
itself.
    The Washington Aqueduct has had discharge lines in place 
since at least 1927, well before the park was established in 
1971. Since the hearing on the Washington Aqueduct back in 
October, the department, with the cooperation of the Corps, has 
been reviewing relevant documents to determine whether all the 
existing discharges fall within the scope of the grandfathered 
permits and right of way.
    If National Park Service ultimately determines that 
authorized discharges are harming park resources, the agency 
will take appropriate action to protect park resources 
consistent with the findings of the studies of the National 
Park Service and the Fish and Wildlife Service.
    In addition to managing the C&O Canal National Historic 
Park, the National Park Service also manages the riverbed of 
the Potomac River in the District of Columbia. Based on its 
unique assignment to the department's jurisdiction, National 
Park Service has long managed the riverbed as miscellaneous 
property on behalf of the Office of the Secretary of Interior, 
but has not managed it as a unit of the National Park Service.
    Nevertheless, the potential impact of sedimentation on the 
riverbed from the Washington Aqueduct discharges is another 
area of concern for the National Park Service.
    Mr. Chairman, this concludes my testimony on behalf of the 
Department of Interior who is committed to continuing to learn 
more about the impacts of the outfalls from the Washington 
Aqueduct on the resources managed by the department and working 
with these other Federal agencies with authority over the 
discharges to minimize those impacts.
    That concludes my prepared remarks and I am looking forward 
to answering any questions that you might have.
    [The prepared statement of Mr. Murphy follows:]

Statement of Donald W. Murphy, Deputy Director, National Park Service, 
                    U.S. Department of the Interior

    Mr. Chairman, thank you for the opportunity to appear before this 
Committee to present the views of the Department of the Interior on 
discharges from the Washington Aqueduct on the Chesapeake and Ohio 
(C&O) Canal National Historical Park and on the endangered shortnose 
sturgeon.
    The U.S. Army Corps of Engineers (Corps) operates the Washington 
Aqueduct facility which provides potable water to the District of 
Columbia and certain jurisdictions in Northern Virginia. The U.S. 
Environmental Protection Agency (EPA) regulates the discharges from 
this facility within the District of Columbia. Although the Department 
of the Interior does not bear primary responsibility for the operation 
of the Washington Aqueduct facility or the regulation of its 
discharges, we take very seriously our stewardship responsibilities for 
the resources entrusted to our care. Since we became aware of 
environmental concerns regarding the Washington Aqueduct facility's 
operation, we have immersed ourselves in the complex legal and 
technical issues associated with them, and are committed to working 
with the other agencies and jurisdictions to address any problems and 
concerns.
    Recently, EPA provided a key opportunity for all concerned with the 
impacts of the Washington Aqueduct facility. On March 28, 2002, EPA 
proposed a revised discharge permit for the facility under the National 
Pollution Discharge Elimination System (NPDES). The Department of the 
Interior has prepared comments on the proposed permit. As an interim 
goal, the Department supports the approximately 35 percent further 
reduction of sediments discharged to the Potomac River proposed in the 
revised permit. However, the Department believes there is a need for 
additional research and monitoring of discharge impacts.
    With respect to the U.S. Fish and Wildlife Service's (FWS) 
involvement in the Washington Aqueduct issue, the FWS has stewardship 
responsibility for certain Potomac River species. Using the best 
scientific information available, the FWS has already determined that, 
except for occasional transient individuals, endangered species under 
the jurisdiction of the FWS are neither present, near, nor likely to be 
affected by the discharges for purposes of the Endangered Species Act. 
Please note that the National Marine Fisheries Service, not FWS, has 
sole regulatory authority over the shortnose sturgeon. If any new 
information that has not already been considered becomes available 
suggesting effects to listed species or their designated critical 
habitat, the FWS will determine if Section 7 consultation under the 
Endangered Species Act must be reinitiated.
    In addition to ESA listed species, the FWS has statutory authority 
and trust responsibilities with respect to a number of Potomac River 
migratory fish species including striped bass, alewife, blueback 
herring, and American shad. In 1998, EPA requested that FWS convene a 
panel of fisheries experts to recommend short-term measures to protect 
fish potentially impacted by the discharges, while the discharge permit 
was being re-issued. In 1999, the panel recommended, among other 
measures, a time of year restriction on the discharges that corresponds 
to sensitive breeding and migratory seasons. EPA has included this 
restriction in its current draft permit. The FWS Environmental 
Contaminants Branch also provided limited technical assistance to EPA 
in the development of a workplan for a 3-year discharge study. The FWS 
believes additional studies designed to assess the direct and 
cumulative impacts on aquatic resources under FWS jurisdiction are 
needed. The FWS is willing to provide technical assistance with respect 
to these studies.
    With respect to the National Park Service's (NPS) involvement in 
the Washington Aqueduct issue, the facility's discharges flow through 
conduits traversing the C&O Canal National Historical Park managed by 
NPS. These conduits empty either on parkland near the Potomac River or 
in the river itself.
    The establishment of the C&O Canal National Historical Park was the 
culmination of years of community efforts to save the canal as a 
recreational, natural, and historical resource. It appears that 
Congress sought to ensure that creation of the park would not disturb 
certain valid existing rights and permits by including in the enabling 
legislation (P.L. 91-664) language that grandfathered them. Section 
5(a) of that law states: ``The enactment of this Act shall not affect 
adversely any valid rights heretofore existing, or any valid permits 
heretofore issued, within or relating to areas authorized for inclusion 
in the park.'' The Washington Aqueduct has had discharge lines in place 
since at least 1927, well before the park was established in 1971. 
Since the hearing on the Washington Aqueduct by the Subcommittee on 
National Parks, Recreation, and Public Lands on October 30, 2001, the 
Department, with the cooperation of the Corps, has been reviewing 
relevant documents to determine whether all the existing discharges 
fall within the scope of the grandfathered permits and rights-of-way.
    The National Park Service believes there is a need to assess the 
nature and extent of any potential impacts from these discharges on 
park resources. The NPS is willing to work with the other Federal 
agencies on these studies. If NPS ultimately determines that authorized 
discharges are harming park resources, the agency will take appropriate 
action to protect park resources consistent with the finding of the 
studies NPS and FWS have identified.
    In addition to managing the C&O Canal National Historical Park, the 
NPS also manages the riverbed of the Potomac in the District of 
Columbia. Based on its unique assignment to the Department's 
jurisdiction, NPS has long managed the riverbed as miscellaneous 
property on behalf of the Office of the Secretary of the Interior, but 
it is not managed as a unit of the National Park System. Nevertheless, 
the potential impact of sedimentation on the riverbed from the 
Washington Aqueduct discharges is another area of concern to the NPS.
    In addition to collecting information regarding the Washington 
Aqueduct discharges, since the October, 2001 hearing on this subject, 
the NPS has begun collecting information from other units of the 
National Park System that are also involved with discharges that 
require NPDES permits in order to compare how the agency addresses 
situations similar to the one here in Washington, D.C. One such unit is 
Gateway National Recreation Area in New York and New Jersey, where the 
water quality is heavily influenced by permitted discharges from sewage 
treatment plants, combined sewer overflows, industrial effluents, and 
toxic substances from abandoned landfills.
    As part of an ongoing program to improve water quality in the park, 
Gateway staff routinely review draft NPDES permits and provide 
recommendations to New York State and New York City governments. Over 
the past decade, the staff has: (1) reviewed and commented on four 
permits for sewage treatment plants adjacent to Jamaica Bay (26th Ward, 
Red Hook, Coney Island, and the Rockaway plants); (2) participated in a 
review of New York City discharges to reduce the volume of sediment 
flowing into to Jamaica Bay; and (3) collaborated with the Interstate 
Sanitation Commission in an effort, though unsuccessful, to eliminate 
the year-round use of chlorine in New York City sewage treatment plant 
effluents. However, we note that the drinking water plant return of 
sediment back to the Potomac River by the Washington Aqueduct is 
qualitatively different from the raw and treated sewage discharges that 
the Gateway staff monitors.
    Mr. Chairman, in conclusion, the Department is committed to 
continuing to learn more about the impacts of the outfalls from the 
Washington Aqueduct on the resources managed by the Department and 
working with the Federal agencies with authority over the discharges to 
minimize those impacts. That concludes my prepared remarks, and I would 
be pleased to answer any questions you or other Committee members might 
have.
                                 ______
                                 
    Mr. Radanovich. [Presiding] Thank you, Mr. Murphy. Welcome 
to the Committee. We will go ahead and hear from everybody and 
then open up the panel for questions.
    I would like to introduce Mr. Tim Keeney, the Deputy 
Assistant Secretary for Oceans and Atmosphere for the National 
Oceanic and Atmospheric Administration. Well, Mr. Keeney. 
Again, I won't be real strict on that time clock. I want to 
make sure everybody gets out what they need to, so use the time 
to make your remarks.

STATEMENT OF TIM KEENEY, DEPUTY ASSISTANT SECRETARY FOR OCEANS 
AND ATMOSPHERE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

    Mr. Keeney. Thank you. Good morning, Mr. Chairman and 
members of the Committee. I am Tim Keeney, Deputy Assistant 
Secretary of Commerce for Oceans and Atmosphere. Thank you for 
the opportunity to testify before this Committee on the status 
of shortnose sturgeon in the Potomac River and the effects of 
the discharges from the Washington Aqueduct on its population 
and habitat.
    Mr. Chairman, I ask that my entire statement be introduced 
into the record. This is just an oral summary.
    Mr. Radanovich. I am sure there is no objection. It is so 
ordered.
    Mr. Keeney. The shortnose sturgeon is listed under the 
Endangered Species Act, ESA of 1973. The National Oceanic and 
Atmospheric Administration or NOAA Fisheries has sole 
jurisdiction for protecting shortnose sturgeon under the 
Endangered Species Act.
    Prior to 1996, the best available information suggested 
that the species was extirpated from the Potomac River. 
However, over the past 6 years, six shortnose sturgeon have 
been captured in the Lower Potomac River.
    Mr. Chairman, I refer to a map I have brought with me. I 
believe I have made copies available for members to see the 
areas that I am talking about. The map on the right, which is 
the map of the entire Chesapeake Bay and the tributaries that 
flow into it specifically, if you look at the Potomac River 
area, it is indicated where the six fish were caught. Three 
were caught sort of midway up the Potomac River. And four 
additional ones were caught near the mouth of the river. So 
that is a total of seven and that is where they were caught.
    Also, the same map indicates with stars where other 
shortnose sturgeon have been found. As you can see, most of 
them are in the northern part of the Chesapeake Bay, 
particularly up toward the Delaware River.
    These unexpected captures represented new scientific 
information to be considered by NOAA Fisheries and other 
agencies including the Corps of Engineers which operates the 
Washington Aqueduct and EPA that permits the aqueduct 
discharges. Not one of the six recent captures of shortnose 
sturgeon has been documented within 50 miles of the aqueduct 
discharges sites.
    There is also no documentation of shortnose sturgeon 
spawning anywhere in the Potomac River. However, based on an 
understanding of preferred sturgeon spawning habitat and the 
fact that little sampling has been conducted, NOAA Fisheries 
and the Environmental Protection Agency have made the 
precautionary assumption that shortnose sturgeon may be present 
and spawning in the vicinity of the Washington Aqueduct and may 
be affected by its discharges/
    In light of this, EPA and NOAA Fisheries initiated an 
informal ESA Section 7 consultation in the spring of 2001 to 
examine the possible effects of the aqueduct discharges on 
shortnose sturgeon. Informal consultations include all 
discussions and correspondence between NOAA Fisheries and 
Federal action agencies that are designed to assist NOAA and 
the action agency in assessing the effects of the of the action 
on the listed species.
    In addition, the informal consultation is a very valuable 
tool by which the action agency may refine a proposed action 
with guidance from NOAA Fisheries to minimize adverse effects 
on listed species.
    Our informal consultation with EPA has already yielded 
benefits for sturgeon. Through discussion with NOAA Fisheries, 
EPA and the Corps of Engineers, EPA has included a provision in 
their draft permit to prohibit discharges during the spring 
months when sturgeon and many species spawn.
    This provision significantly reduces the potential impact 
of the discharges on sturgeon during the Corp's management of 
the aqueduct. Despite this progress, NOAA Fisheries continues 
to have concerns about the potential effect of the discharges 
on shortnose sturgeon.
    Last week, EPA sent NOAA Fisheries a letter requesting a 
formal consultation along with a final version of their 
biological evaluation which provides information NOAA Fisheries 
needs to continue this consultation.
    Mr. Chairman, I would like to submit a copy of this letter 
for the record.
    Mr. Radanovich. Is there any objection? It is so ordered.

    [The letter from EPA submitted for the record follows:]
    [GRAPHIC] [TIFF OMITTED] T0271.002
    

    Mr. Keeney. NOAA Fisheries will seek to complete the 
consultation within the required 135 days of the request. This 
consultation will culminate in NOAA Fisheries providing its 
biological opinion regarding the possible effects of the permit 
on shortnose sturgeon.
    Mr. Chairman, in closing, my written testimony outlines the 
need for better science and data to ascertain the extent to 
which endangered sturgeon may rely on the Little Falls area for 
spawning habitat.
    NOAA Fisheries plans to meet with other Federal and local 
agencies later this summer to further investigate and propose 
sampling protocols for the spring 2003 sturgeon spawning 
season.
    NOAA Fisheries looks forward to working with Congress, 
other Federal agencies and the citizens of the area to gather 
the additional science necessary to make informed decisions 
that will best protect the shortnose sturgeon in the Potomac 
River.
    Mr. Chairman, I welcome any questions from you or any other 
members of the Committee.
    [The prepared statement of Mr. Keeney follows:]

  Statement of Timothy R.E. Keeney, Deputy Assistant Secretary, U.S. 
                         Department of Commerce

    Good morning, Mr. Chairman and members of the Committee. Thank you 
for the opportunity to testify today on the status of shortnose 
sturgeon in the Potomac River, and the effects of the discharges from 
the Washington Aqueduct on its population and habitat. This issue is of 
great interest and concern to NOAA just as it is to this Committee. We 
look forward to working with Congress, other Federal agencies, and the 
citizens of the area to identify and implement appropriate programs to 
conserve species and aquatic habitats.

Background
    Shortnose sturgeon exists in rivers and bays of eastern North 
America from Canada to Florida. It is an anadromous species, which 
means that it lives in slow moving river waters or nearshore marine 
waters, but migrates periodically to fresher water to spawn. The 
shortnose sturgeon was listed as endangered under the Endangered 
Species Preservation Act on March 11, 1967, and subsequently listed 
under the Endangered Species Act (ESA) of 1973. The National Marine 
Fisheries Service (NMFS) has sole jurisdiction for protecting shortnose 
sturgeon under the ESA.

Shortnose Sturgeon in the Chesapeake Bay and Potomac River
    Prior to 1996, the most recently documented evidence of shortnose 
sturgeon in the Potomac was from 1899. The best available information 
suggested that the species was extirpated from the Potomac River. Most 
of the shortnose sturgeon captured recently in the Chesapeake Bay have 
been in the upper Bay, north of Baltimore, close to the Chesapeake and 
Delaware Canal. Between 1996 and 2002, six shortnose sturgeon were 
captured in the lower and middle tidal Potomac River during a U.S. Fish 
and Wildlife Service (FWS) reward program for Atlantic sturgeon (see 
attached map). These shortnose sturgeon were captured between 55 and 
123 miles downstream of the Washington Aqueduct's Little Falls 
discharge.
    In addition to the reward program for Atlantic sturgeon, the FWS 
conducted two sampling studies between 1998 and 2000 in the Maryland 
waters of the Chesapeake Bay to determine the occurrence of shortnose 
and Atlantic sturgeon in areas of proposed dredge-fill operations. One 
of these studies included surveys at five sites located in the middle 
Potomac River approximately 30 to 74 miles downstream of the Washington 
Aqueduct discharge site. During this study, no shortnose sturgeon were 
captured. A second much more limited study included sampling at two 
areas in the vicinity of Little Falls, Virginia, which are environments 
that are consistent with the preferred spawning habitat of shortnose 
sturgeon in other rivers and are located near the Aqueduct discharge 
sites. No shortnose sturgeon were captured during this study.
    To date, no Shortnose sturgeon have been documented in the area of 
the Aqueduct discharge sites. There is also no documentation of 
shortnose sturgeon spawning anywhere in the Potomac River. However, the 
FWS study that was performed near Little Falls was limited in scope due 
to adverse river conditions. In addition, shortnose sturgeon are 
inherently difficult to capture and often there is little evidence of 
their presence in river systems. NMFS and the Environmental Protection 
Agency(EPA) have, therefore, made the precautionary assumption that 
shortnose sturgeon may be present and spawning in the vicinity of the 
Aqueduct and may be affected by the discharges. This assumption is 
based on the following information: (1) Recent captures of shortnose 
sturgeon in downstream reaches of the Potomac River; (2) The presence 
of habitat near Little Falls that is consistent with known shortnose 
sturgeon spawning habitat in other rivers; and (3) Known migratory and 
spawning behavior of shortnose sturgeon in other rivers for which NMFS 
has more information.

Washington Aqueduct ESA Section 7 Consultation History
    Prior to 1996, the best available information indicated that 
shortnose sturgeon were extirpated from the Potomac River. Therefore, 
while concerns about the effect of the Washington Aqueduct's discharge 
on water quality, fish, and other aquatic life existed prior to 1996, 
the impacts to shortnose sturgeon specifically were not considered. The 
recent captures of shortnose sturgeon during the FWS reward program 
represented new scientific information that NMFS and other agencies had 
to consider, resulting in the initiation of consultation pursuant to 
section 7 of the ESA in spring, 2001.
    EPA and NMFS pursued ``informal'' section 7 consultation, as 
defined by NMFS' regulations, for over a year on the issuance of a 
National Pollutant Discharge Elimination System (NPDES) permit for the 
Washington Aqueduct to determine the possible effects of the Aqueduct 
discharges on shortnose sturgeon. While the consultation is not yet 
complete, NMFS has already recommended that the EPA permit contain a 
condition that no discharges be allowed during the spawning period for 
shortnose sturgeon. EPA has included this recommendation as a condition 
of their draft NPDES permit. NMFS reviewed a draft of the permit and 
provided written comments to the EPA on March 27, 2002.
    The Army Corps of Engineers (Corps), operator of the Washington 
Aqueduct, funded a three-year water quality study to assess the 
discharge from the Aqueduct and its effects. The study report was 
published in October 2001. EPA used the discharge study results, among 
other available information, to develop a draft biological evaluation 
(BE) on the potential impacts of the Washington Aqueduct discharges on 
shortnose sturgeon. After NMFS review of EPA's draft BE and subsequent 
discussions, EPA and NMFS have agreed to enter into ``formal'' 
consultation, which will culminate in NMFS providing its biological 
opinion (BO) regarding the possible effects of the permit on shortnose 
sturgeon. The BO may include measures to minimize adverse effects on 
shortnose sturgeon.

Clarifications on Sturgeon Biology and the Consultation Process
    We are concerned that there may be several important misconceptions 
in regards to sturgeon biology and our ongoing consultation with the 
EPA. We appreciate the opportunity to further clarify these issues.

Misconception 1 - Little Falls is the sole spawning ground for the 
        shortnose sturgeon.
    We are aware of reports and comments indicating that the Little 
Falls area is the sole spawning area of the shortnose sturgeon. This 
statement is not true. Shortnose sturgeon exist as 19 distinct 
populations that occupy and spawn in rivers and bays from Canada to 
Florida. In addition, the Potomac River is just one of several 
tributaries in the Chesapeake Bay drainage that appears to have 
suitable habitat for shortnose sturgeon. Other rivers that appear to 
have suitable spawning habitat for the Chesapeake Bay population of 
shortnose sturgeon include the York, Rappahannock, Patuxent, James, 
Susquehanna, and Gunpowder Rivers.
    Without a doubt, more research is needed to fully understand the 
extent to which the shortnose sturgeon may or may not rely upon the 
Little Falls area for spawning habitat.

Misconception 2 - Discharges from the Aqueduct are responsible for the 
        lack of sturgeon recovery in the Chesapeake Bay.
    Some reports have strongly suggested that the Aqueduct discharges 
are responsible for the lack of shortnose sturgeon recovery in 
Chesapeake Bay. NMFS recognizes that water quality may be one of 
several factors affecting shortnose sturgeon recovery. However, the 
facts do not support isolating discharges from the Aqueduct as a 
primary factor affecting shortnose sturgeon recovery in the Chesapeake 
Bay. As noted above, the Potomac River is just one of several rivers in 
the Chesapeake Bay drainage that appear to have suitable habitat for 
shortnose sturgeon. However, no recovery of shortnose sturgeon has been 
observed in any river in the Chesapeake Bay drainage (see attached 
map). Therefore, it appears that some natural and/or anthropogenic 
factor(s) other than sediment discharges into the Potomac may be 
limiting this species' ability to recover in the Chesapeake Bay.
    It is interesting to note that the Hudson River, which supports the 
most healthy and increasing shortnose sturgeon population, is not 
pristine. Studies have identified 183 separate industrial and municipal 
discharges in the Hudson and Mohawk Rivers, including chemical and oil 
industries, power plants, and sewage and wastewater facilities. In 
spite of these less than ideal water quality conditions, the Hudson 
River population of shortnose sturgeon has grown to approximately 
60,000 individuals and appears to be on its way toward recovery.

Misconception 3 - NMFS is not consulting with the EPA on the effects of 
        Aqueduct discharges on shortnose sturgeon.
    NMFS has been criticized by some for being slow to react to the 
ramifications of the discovery of shortnose sturgeon in the lower 
Potomac. In light of this, I want to assure you that NMFS will make 
every effort to be as thorough as possible during the consultation 
process.
    NMFS has been engaged in an ``informal'' section 7 consultation 
with the EPA since spring 2001 regarding EPA's issuance of a NPDES 
permit for the Aqueduct discharges. Now NMFS and EPA are in ``formal 
consultation.'' Formal consultations generally must be completed within 
135 days.
    ESA consultations occur in two stages as defined in NMFS' ESA 
section 7 regulations: the informal consultation and the formal 
consultation. Any section 7 consultation is triggered by Federal 
actions that ``may affect'' a listed species or critical habitat (50 
CFR 402.14). Typically, an action agency will first engage in informal 
consultation. Informal consultations include all discussions and 
correspondence between NMFS and Federal action agencies that are 
designed to assist NMFS and the action agency in assessing the effects 
of the action on the listed species. If NMFS concurs with the action 
agency that the action is not likely to adversely affect the listed 
species, the consultation process ends at the informal stage (50 CFR 
402.13). However, if NMFS determines that the action is ``likely to 
adversely affect'' a listed species, NMFS will recommend that the 
action agency enter into formal consultation. Alternatively, as EPA has 
done in this case, an action agency may choose to proceed directly to 
the formal consultation stage at any point in the process.

Misconception 4 - NMFS has the authority and obligation to shut down 
        Federal operations that may adversely affect an endangered 
        species.
    In 1982, Congress amended the ESA to authorize Federal agencies to 
adversely affect threatened or endangered species and even ``take'' 
threatened and endangered species as long as the actions are not likely 
to jeopardize the continued existence of the listed species, the 
``take'' is not the intended purpose of the action, and the impact is 
minimized. As a result of these amendments, section 7(b)(4) directs 
NMFS to issue ``incidental take statements'' for any take NMFS 
anticipates, if the action is not likely to jeopardize the listed 
species that would be ``taken.'' Section 7(o) of the ESA exempts such 
taking from acts that are prohibited by section 9 of the ESA. There are 
several examples of incidental take statements issued in the past that 
``authorize'' takes resulting from sediment discharges into the 
spawning areas of threatened or endangered fish.
    To conclude, NMFS takes its responsibility to protect endangered 
aquatic species seriously. The discovery of the shortnose sturgeon in 
the lower Potomac will require additional research by Federal agencies, 
including NMFS, into its habitat and into actions that could adversely 
impact the existence of the species. I look forward to working closely 
with Congress and other agencies for the protection of this species. 
Thank you for the opportunity to provide this testimony.
                                 ______
                                 
    [Attachments to Mr. Keeney's statement follow:]

    [GRAPHIC] [TIFF OMITTED] T0271.003
    
    [GRAPHIC] [TIFF OMITTED] T0271.004
    

Response to Questions Submitted for the Record by Timothy R.E. Keeney, 
        Deputy Assistant Secretary, U.S. Department of Commerce

Question: Comparison of the 2001 Klamath River and 2002 Potomac River 
        biological opinions
Answer
    In April, 2001, NOAA Fisheries completed a biological opinion 
(BiOp) on the Bureau of Reclamation's (BOR) proposed operation of the 
Klamath Project and the project's effects on a threatened population of 
coho salmon. The BiOp concluded that the proposed operation of the 
water storage and delivery system was likely to jeopardize this 
population of coho salmon, and provided reasonable and prudent 
alternatives (RPAs) to avoid jeopardizing threatened coho. In November, 
2002 NOAA Fisheries completed a BiOp on the effects of discharges from 
the Washington Aqueduct, operated by the Army Corps of Engineers (ACOE) 
and permitted by the Environmental Protection Agency (EPA), on an 
endangered population of shortnose sturgeon. The BiOp found that the 
action was not likely to jeopardize this population of sturgeon.
    These two BiOps differ in their conclusions because of significant 
differences in the biology of coho salmon (assessed in Klamath BiOp) 
and shortnose sturgeon (assessed in Washington Aqueduct BiOp) and based 
on NOAA Fisheries' analysis of the effects of the proposed actions on 
listed species. In summary, the effects of chronic reduced water flows 
in the Klamath River on coho salmon that die after spawning are more 
significant than periodic discharges of sediments on sturgeon that can 
persist and spawn within a river for decades. The differences in the 
conclusions of the two BiOps in question are, therefore, not the result 
of unequal implementation of the ESA, as some have suggested. Rather, 
the BiOps differ because of significant differences in the biology of 
coho salmon and shortnose sturgeon, and differences in the effects of 
the Federal actions on the two species.
    What are the Key Biological Differences between Coho Salmon and 
Shortnose Sturgeon? Coho salmon in the Klamath River basin, like other 
Pacific salmon, have a life history that includes spending a number of 
years at sea before returning to natal rivers to spawn. Adults die 
shortly after spawning. Consequently, an adult coho salmon that lives 
out its complete life cycle will spawn only once in its lifetime. Coho 
salmon are very dependent on adequate freshwater habitat for juvenile 
rearing, adult and juvenile migration, and spawning. Coho can be very 
habitat limited in the freshwater environment.
    Shortnose sturgeon, like coho salmon, are migratory. However, 
sturgeon do not die after spawning. Shortnose sturgeon in the 
Chesapeake Bay and its tributaries may live 20 years or more. A 
shortnose sturgeon from the Chesapeake Bay that lives out its complete 
life cycle will likely spawn at least several times, and perhaps more 
than 15 times. This life history strategy provides a natural buffer 
against environmental variability and unsuccessful spawning years. It 
allows shortnose sturgeon populations to withstand an occasional year 
of low reproductive output without jeopardizing the population.
What are the Key Differences in Effects of the Federal Actions?
    In the Klamath River, the BiOp assessed water management practices 
which would result in a significant reduction in habitat quantity and 
quality for coho salmon. Specific concerns included maintaining 
adequate habitat space and water temperatures. NOAA Fisheries found 
that the minimum flow requirements in BOR's 2001 water management plan 
were inadequate. NOAA Fisheries determined that the flow schedule 
proposed in BOR's biological assessment would result in a reduction in 
habitat quantity and quality compared with the average operations of 
the project during the 1990s. In NOAA Fisheries' view, this water 
management strategy suffered from the same flaw as BOR's 2001 
biological assessment which the National Research Council (NRC) 
concluded exposed threatened coho salmon to new levels of risk and was 
not scientifically justifiable. Given the life history of coho salmon 
and the findings of the NRC, NOAA Fisheries found that the water 
management plan was likely to jeopardize the continued existence of the 
species. NOAA Fisheries recommended higher flows to avoid jeopardy. BOR 
managed the Project to meet those flows.
    In the Potomac River, the BiOp assessed the effects of periodic 
discharges of sediment into the Potomac River near Little Falls, where 
shortnose sturgeon are presumed to spawn. One of NOAA Fisheries' two 
major concerns was that discharges from the Aqueduct could be toxic to 
shortnose sturgeon. A toxicology study of discharges concluded that 
there were few toxicological effects on test organisms. NOAA Fisheries 
concluded that, given the short duration of the pulse of sediments, the 
potential toxicological impacts were unlikely to jeopardize shortnose 
sturgeon. NOAA Fisheries' second major concern was that discharges 
during the spring spawning season could smother sturgeon eggs and 
larvae. NOAA Fisheries worked closely with EPA and ALOE during the 
early, ``informal'' stage of the consultation to address this concern. 
EPA and ACOE agreed to prohibit discharges during the spring spawning 
season to avoid potential smothering effects. The only exception would 
be under certain emergency situations, and would occur no more than 
once during the 5-year duration of the permit. Given the life history 
of shortnose sturgeon, and given that other rivers in the Chesapeake 
Bay appear to have suitable spawning habitat for sturgeon, one 
discharge in the Potomac River in 5 years is not likely to jeopardize 
the continued existence of this sturgeon population.

How have BOR and EPA Responded During the Consultations?
    Another distinction between the consultations on the Klamath and 
Potomac Rivers is how each Federal action agency responded to NOAA 
Fisheries' recommendations to protect ESA listed species. In each case, 
NOAA Fisheries found that actions proposed by the BOR and EPA ``may 
affect'' ESA listed species, thereby triggering a consultation under 
section 7 of the ESA. NOAA Fisheries and BOR have consulted multiple 
times on BOR's operation of the Klamath Project. In each instance, BOR 
has proposed to allow minimum flows below those recommended in NOAA 
Fisheries' previous BiOps. Consequently, NOAA Fisheries have issued a 
series of ``jeopardy''
    BiOps for proposed annual operating plans for the Klamath Project. 
In contrast, EPA and ACOE worked with NOAA Fisheries during the 
``informal consultation'' process to minimize negative effects from 
discharges in the Potomac River on shortnose sturgeon. Specifically, 
EPA agreed to alter the permit authorizing discharges from the 
Washington Aqueduct into the Potomac River to prohibit discharges 
during the spring spawning season, significantly reducing the threat to 
shortnose sturgeon.
                                 ______
                                 
    Mr. Radanovich. Thank you very much, Mr. Keeney. I 
appreciate your testimony.
    Next is Mr. Dominic Izzo, who is the Principal Deputy 
Assistant Secretary for the Army for Civil Works, U.S. Army 
Corps of Engineers.
    Dominic, welcome to the Committee. Please begin your 
testimony.

STATEMENT OF DOMINIC IZZO, PRINCIPAL DEPUTY ASSISTANT SECRETARY 
   OF THE ARMY FOR CIVIL WORKS, U.S. ARMY CORPS OF ENGINEERS

    Mr. Izzo. Mr. Chairman and members of the Committee, thank 
you for inviting me to testify today. I am Dominic Izzo, the 
Principal Deputy Assistant Secretary of the Army for Civil 
Works. The civil works of the Corps of Engineers and its 
Baltimore District are under my supervision.
    The Baltimore District has a long distinguished history of 
service to the Nation and the region and they have a 
significant record of good environmental achievements. For 
example, for more than two decades, the Baltimore District has 
been in the forefront of environmental restoration in 
Chesapeake Bay, including projects that have improved water 
quality and habitat in the Potomac River, Anacostia and 
Susquehanna Rivers. We have full confidence in the district and 
in its commander.
    You asked the Army to provide information on the Washington 
Aqueduct and its legally permitted discharges. The Washington 
Aqueduct is a division within the Baltimore District.
    I will first summarize the major role the aqueduct plays in 
support of our Nation's Capital and the surrounding areas and 
then respond to the issues raised in your presentation.
    The aqueduct has supplied water to the District of Columbia 
since 1859. Many of the original structures from the 1850's are 
still in operation and many others date to the 1920's. Most of 
the real estate supporting the aqueduct's mission and current 
treatment processes were acquired and functioning decades 
before the C&O Canal became a national park.
    Today, the aqueduct provides all the water supplied to 
Washington, D.C., Arlington County, Virginia and the city of 
Falls Church, Virginia, providing high quality, safe and 
affordable water to approximately one million consumers in 
these areas, particularly in light of September 11th, is one of 
the District's highest priorities.
    The aqueduct operates like a business. It gets its 
operational and capital improvement funds from the fees it 
charges its customers for the water it supplies. It is 
regulated by the Safe Drinking Water and Clean Water Acts and 
takes its compliance responsibilities under those acts 
seriously.
    It operates in accordance with the National Pollutant 
Discharge Elimination System permits issued to it by both the 
State of Maryland and by the Environmental Protection Agency. 
These permits allow the aqueduct to make routine discharges 
from the sediment basins to the Potomac River and infrequent, 
maintenance related discharges at other permitted locations.
    All water treated by the aqueduct comes from the Potomac 
River which naturally transports a large volume of sediment. 
Treatment involves a three-step process that includes 
sedimentation, filtration and disinfection. In the case of the 
aqueduct, sediment removes begins in the Dalecarlia Reservoir. 
Half of the sediment taken in from the Potomac River naturally 
settles in that reservoir and is not returned to the Potomac 
River.
    With the aid of a coagulant, aluminum sulfate, the 
remaining sediment is force to settle out into six large basins 
and Dalecarlia in Georgetown. This process is typical in the 
water production industry. Periodically, these six 
sedimentation basins must be cleaned of the sediment buildup. 
Their contents, which include river water, accumulated 
sediments and the accumulated coagulant, are drained to the 
Potomac River in keeping with the terms of the EPA discharge 
permit.
    At the last stage of the basin cleaning at Dalecarlia, some 
treated water is used to push out the remaining sediment. That 
water contains chlorine, but the aqueduct has verified through 
samples taken during the basin cleaning that the chlorine in 
both the water and the sediment, as returned to the river, has 
been neutralized.
    The volume of solids discharged to the Potomac River from 
the six basins is only one-half of the total volume of solids 
removed from the water, which was originally taken from the 
river. At a maximum, it represents less than 1 percent of the 
river flow on days when we do the discharge.
    With respect to the non-routine discharges for plant 
maintenance, the State of Maryland permits the aqueduct to 
discharge raw water, that is untreated water, into streams and 
on lands that cross park property.
    EPA has also issued the aqueduct a permit that allows 
discharge of raw water, dosed with coagulant, if maintenance is 
required on a major conduit. The path of this discharge is open 
and crosses park property. Discharges of this nature seldom 
occur, about once every 2 years, and last approximately 6 
hours.
    Two other discharges are allowed under the permit. One is 
to drain ground water from under the sedimentation basins 
directly to the Potomac River and the other is to drain water 
from another large conduit to Rock Creek. That discharge might 
occur only once in 10 years and involves sediment-free, clear, 
but unchlorinated water.
    All of the Washington Aqueduct's discharge points or 
outfalls are properly regulated by and comply with Federal and 
State permits. At this time, there are no known adverse effects 
from these discharges from the C&O Canal National Historic Park 
property.
    The next issue you asked us to discharge is the impact of 
the sediment discharges, if any, upon the shortnose sturgeon. 
That particular question is the subject of current litigation 
brought by the National Wilderness Institute against several of 
the Federal agencies testifying here today. Accordingly, I will 
constrain my remarks.
    In accordance with the Endangered Species Act, consultation 
among the Federal agencies regarding the shortnose sturgeon is 
ongoing at this time. I can mention that at the request and 
direction of the EPA the Army Corps of Engineers contracted for 
two significant studies to determine the impact, if any, of the 
sediment discharges upon the aquatic life of the Potomac River.
    Based on the study plan coordinated with the Fish and 
Wildlife Service and approved by EPA Region 3, and performed in 
accordance with the accepted scientific procedure and analysis 
the most recent study was completed in October 2001 and sent to 
these agencies.
    Based on that and other information provided to EPA Region 
3, they have recently issued a draft NPDES permit relating to 
Washington Aqueduct solids discharges. The public comment 
period closes on June 28, 2002 for that permit.
    In addition, I would like to mention that we also provided 
a report to the Appropriations Committee on the 23rd of May 
that summarized all the reports and studies that the Corps has 
conducted and alternatives we have examined in regard to the 
Washington Aqueduct. I have attached a copy of that report to 
my written testimony for your information.

    [The report referred to follows:]
    [GRAPHIC] [TIFF OMITTED] T0271.005
    
                                ------                                


       Washington Aqueduct Sediment Discharge--Report to Congress
Purpose of Report
    This report has been prepared in response to House Report 107-216 
(page 60) and Senate Report 107-85 (page 65) accompanying the District 
of Columbia Appropriations Act, 2002, Public Law 107-96. These two 
documents direct the Washington Aqueduct and Environmental Protection 
Agency (EPA) to submit a report to Congress on the environmental 
impacts of sediment discharges from the Washington Aqueduct drinking 
water plant into the Potomac River. The report should include an 
analysis of options for handling the residual solids from plant 
operations including, but not limited to, off-site disposal and 
treatment at the Blue Plains Waste Water Treatment Plant. The analysis 
should include estimated costs and possible implementation schedules. 
In addition, the Blue Plains treatment option should include, in part, 
a description of how the proposed Combined Sewer Overflow Long Term 
Control Plan tunnel system might be used to handle the discharge from 
the Aqueduct.

Background
    Because the issue of residual solids is one of long-standing 
interest, the analysis contained in this report draws upon studies 
conducted as far back as 1977 and as recent as last year. The report 
describes the processes by which the residual solids are generated and 
the various alternatives that have been investigated over the years. 
Some of the prior studies had the benefit of detailed engineering 
analysis while others were discussed professionally but without the 
same level of specificity. This report provides the Committee with an 
overview of Washington Aqueduct operations, a summary of many of the 
residual solids management options that have been explored in past 
years, and a discussion of some of the options that might be considered 
in greater detail in the future.

Overview of Washington Aqueduct Operations
    Washington Aqueduct collects, purifies and pumps an adequate supply 
of potable water to the District of Columbia, Arlington County and the 
City of Falls Church, Virginia. Average daily production is 
approximately 180 million gallons. All costs of the Washington 
Aqueduct's operation, including capital construction, are borne by the 
citizens of its customer jurisdictions. The last time funds were 
appropriated for capital improvements was 1927, when the Dalecarlia 
plant was built.
    Washington Aqueduct provides water for all users in the three named 
jurisdictions. Included in the service area are Federal Government 
facilities located in the District of Columbia. In addition, water is 
provided to the Pentagon, National Airport, Arlington National 
Cemetery, and other Federal and military facilities in the Aqueduct's 
Northern Virginia service area. A fire in the Capitol Building in 1850 
resulted in the Corps of Engineers mission to develop a water supply 
for the Federal city. Providing safe drinking water for public health 
and sanitation, as well as reliable fire protection for the National 
Capital Region (as exemplified by Arlington County's response to 
fighting the fire at the Pentagon on September 11, 2001), remains the 
mission of the Washington Aqueduct.
    Washington Aqueduct is a division of the Army Corps of Engineers 
Baltimore District. As a wholesale public water utility, it is 
regulated by Region 3 of the EPA. It also has permits from the State of 
Maryland and the District of Columbia covering various aspects of its 
overall industrial operations.
    All water treated by Washington Aqueduct and delivered to its 
customers comes from the Potomac River. The treatment process employs 
three phases: sedimentation, filtration, and disinfection. Aluminum 
sulfate (commonly called alum) is used as the coagulant in the 
sedimentation process. The solids that collect in the six sedimentation 
basins (two at Georgetown and four at Dalecarlia) are a combination of 
the added coagulant and the naturally occurring sediment that is being 
transported by the Potomac River at the time it is diverted to the raw 
water reservoir, which is known as the Dalecarlia Reservoir.
    Of the sediment taken in with the river water, approximately half 
of it settles naturally (i.e., without the use of a coagulant) in the 
Dalecarlia Reservoir. This sediment never goes back to the Potomac 
River. Some of it is removed mechanically and deposited on land 
surrounding the reservoir, and the remainder is left to accumulate in 
the reservoir.
    The sediment that does not settle in the Dalecarlia Reservoir 
enters the treatment process. The two Georgetown sedimentation basins 
support the McMillan treatment plant, and the four Dalecarlia 
sedimentation basins support the Dalecarlia treatment plant. The dosage 
of alum used to coagulate and settle the sediment varies with the 
turbidity of the incoming raw water from the Dalecarlia Reservoir. The 
sediment and alum (a combination referred to as ``residual solids'') 
must be cleaned from the sedimentation basins periodically to ensure 
the ability of the sedimentation basins to function as designed. The 
current technique used to clean a sedimentation basin is to release the 
contents through a pipe to an outfall on the Potomac River. Some 
additional flushing water is used to eject the sediment remaining after 
the initial draining. This process requires approximately 24 hours to 
complete for each basin.
    Under normal operating conditions, there could be 16 discharges 
from the Dalecarlia plant each year (four times a year for each of four 
basins) and four to six discharges per year from the Georgetown basins 
(two to three times a year for each of the two basins). There are three 
discharge pipes. Material is discharged directly into the Potomac River 
from the discharge pipe that serves the basins at the Dalecarlia plant. 
The two discharge pipes that serve the Georgetown basins terminate in a 
headwall approximately 75 feet from the river bank, and the discharged 
material flows through a channel (which is normally dry except during 
the two or three annual discharges) into the Potomac River. These pipes 
all transit the C&O Canal National Historic Park, a unit of the 
National Park Service. The discharges are timed to coincide with river 
flows that are determined to provide the best sediment transport in the 
free flowing river.
    Environmental safeguards concerning river flows at the time of 
discharge were added in 1983. These safeguards required the presence of 
certain river levels to ensure proper reintegration of solids with the 
flowing river. This altered the cleaning techniques that had been used 
at Georgetown since the McMillan plant was built in 1903 and had been 
in effect at the Dalecarlia plant since it was competed in the late 
1920's.
    There is another element of the water treatment process that 
produces particulate matter. That is the backwash from the filters. At 
the Dalecarlia plant there are 36 filters. Each filter is cleaned by a 
process that temporarily reverses the flow thereby flushing out 
sediment trapped in the media. On average, a filter is backwashed every 
96 hours. Given the number of filters, the process occurs several times 
a day. As explained later, even though the plant was designed in 1925 
to discharge sediment and the flushing water to the Potomac River, that 
procedure has not been used since 1982. The McMillan treatment plant 
filter backwash has never gone to the Potomac River. It is handled on 
site at McMillan.

Prior Studies of Alternative Sediment Discharge Methods
    Over the years that the Washington Aqueduct has been operating its 
treatment plants, there have been several studies undertaken to look at 
the chemical and physical effects of the solids periodically discharged 
into the Potomac River. Washington Aqueduct has also studied 
alternatives to the discharge of these solids to the Potomac River.
    In 1976, a contractor to Washington Aqueduct (Camp Dresser & McKee, 
Inc.) undertook a comprehensive study of alternatives. Its report on 
``Water Treatment Plant Waste Disposal Alternatives Dalecarlia Water 
Treatment Plant and Georgetown Reservoir'' was issued in 1977. That 
report dealt with disposal alternatives of particulate matter involved 
with two processes: the filter backwash and the sedimentation basin 
cleaning. Two options were identified for the filter backwash at 
Dalecarlia. One option was to continue discharging into the Potomac 
River (which was the practice at the time). The other option was to 
recycle the discharge
    In 1977, Washington Aqueduct adopted the ``recycle'' option from 
the report and began the design that led to the construction of a 
project to collect the filter backwash sediment and the flushing water 
and route it to the Dalecarlia Reservoir. That project consisted of the 
construction of a large underground chamber to initially contain the 
discharge. A collocated underground pumping station was built to send 
the sediment and the water back to the Dalecarlia Reservoir. When the 
project was completed in 1982, the filter backwash discharge to the 
Potomac River ceased.
    Seven options were identified for the sedimentation basin solids. 
Each option is listed below, along with the estimated capital 
construction/annual operating costs shown in parentheses. The cost 
estimates are in 1977 dollars. The estimates do not represent the 
outcome of a complete design of each option considered at that time. 
They are reported here to provide a relative magnitude of costs among 
options considered at that time. The options and cost estimates are as 
follows:
    1. Continue to discharge solids to the Potomac.
    2. Collect and discharge daily 0.75% solids to Potomac at 
Dalecarlia and Georgetown ($11,339,350/$1,071,550).
    3. Collect, thicken and discharge daily 3% solids to DC Sewerage 
System from Dalecarlia and Georgetown ($14,004,950/$1,536,410).
    4. Collect, thicken, dewater (centrifuge) and dispose residue to 
land application (existing excavation) ($14,276,750/$2,695,670).
    5. Collect, thicken, dewater (centrifuge) and dispose residue to 
landfill (sanitary) ($15,658,000/$2,567,670).
    6. Collect, thicken, dewater (filter press) and dispose residue to 
landfill ($19,471,100/$3,142,140).
    7. Collect, thicken, dewater (filter press) and dispose residue to 
land application ($19,471,100/$3,230,340).
    After discussions with EPA in the late 1970's, the practice of 
discharging residual solids to the Potomac was retained. As indicated 
earlier, a river flow condition was added to the National Pollutant 
Discharge Elimination System (NPDES) permit issued by EPA in 1983. That 
condition was intended to ensure good reintegration of the sediment 
into the flowing river and limit the localized sedimentation effects in 
the river by the introduction of the residual solids. In the NPDES 
permit issued to Washington Aqueduct in 1989, EPA Region 3 required 
that a study be undertaken to determine the toxic and benthic effects 
of these periodic discharges on the Potomac River. The Dynamac 
Corporation completed that study in 1993 after two years of fieldwork, 
modeling studies, and laboratory testing. It found that there were no 
toxic or benthic effects.
    In September 1994, Washington Aqueduct contracted with Whitman, 
Requardt and Associates (WR&A) to begin design of a method to collect, 
convey and dewater residual solids generated by the operations of the 
Dalecarlia water treatment plant, the Georgetown basins and the 
Dalecarlia Reservoir. The final design memorandum (conceptual design 
and cost estimates) was completed in November 1996. That concept 
involved centrifuges and trucking from the Dalecarlia water treatment 
plant site. It included an alternative to continuously dredge the 
Dalecarlia Reservoir to remove the sediment that naturally settled out, 
dewater it, and truck it off-site along with the residual solids 
recovered from the sedimentation basins at Dalecarlia and Georgetown. 
The estimated capital construction costs and annual operating costs of 
this concept (in 1996 dollars) were $63,387,340 and $3,387,000, 
respectively.
    The design memorandum was prepared based on assumed discharge 
criteria of 30 milligrams per liter for both aluminum and iron. 
Washington Aqueduct made that assumption in order to study the option 
that had the most complex outcome that might be expected if it were 
executed in response to an EPA permit decision. Other options were not 
developed in that design memorandum. Development of such a design 
memorandum generally takes 12 to 18 months as fundamental design 
decisions are evaluated for cost and function. Because of the major 
undertaking such a project would represent, the Corps of Engineers 
would be required to follow the provisions of the National 
Environmental Policy Act (NEPA). Several months would be required to 
prepare a report, which evaluates the environmental consequences of the 
full menu of alternatives, in addition to the preferred alternative 
being proposed. Additional time would then be needed to address 
concerns raised during the public comment period before proceeding on 
with the plans and specifications. Plans and specifications for 
projects of this scope usually take two years to complete. Upon award 
of a contract for a process and facilities of the kind evaluated in the 
design memorandum, it would take at least three years of construction 
before the facilities would be placed into operation. Other 
alternatives could take more or less time to construct.
    The WR&A design memorandum project focused on the collection and 
movement of the solids for processing at the Dalecarlia plant. Their 
analysis favored centrifuges over filter presses. The alternatives that 
involved a lesser concentration of solids discharged from the basins to 
the Potomac River or the placement of those solids into the District of 
Columbia wastewater collection system were not investigated. The latter 
decision reflected a conclusion reported in an exchange of letters with 
the District of Columbia Department of Public Works (the agency 
responsible for wastewater operations at that time) that there was no 
capacity for these solids at Blue Plains.
    In December 1993, after a malfunction in the treatment process at 
the Dalecarlia treatment plant, EPA issued a precautionary boil water 
advisory. Even though later analysis of the suspect water revealed 
there was no contamination, this incident heightened concerns about the 
District of Columbia drinking water system. Both in-house and 
consultant studies produced a substantial capital project array that 
would be necessary to ensure long term safe and reliable operation of 
the water treatment facilities. Paying for these improvements was a 
major issue, since the Corps of Engineers relies on the Washington 
Aqueduct customers to fund all aspects of its operations.
    Design work on these improvements was suspended as a result of the 
uncertainty of the Corps of Engineers' continued ownership and 
operation of the Washington Aqueduct and the financial condition of the 
District of Columbia at that time. The conceptual design also generated 
considerable opposition from the residential communities surrounding 
the Dalecarlia site. These communities were, and continue to be, 
concerned about the truck traffic required to transport dewatered 
solids from the facility. A provision in the Safe Drinking Water Act 
Amendments of 1996 (Section 305) gave the Army the ability to let the 
wholesale customers recommend what entity should continue water 
production operations. That same provision also allowed for a three-
year period (Fiscal Years 1997 through 1999) in which Washington 
Aqueduct could borrow a total of $75,000,000 for necessary capital 
improvements. However, a final provision in that legislation, while not 
prohibiting the expenditure of those funds on a new solids handling 
regime, effectively put the emphasis on 43 separate projects funded by 
Treasury Department loan funds. These projects ranged from studies, to 
infrastructure repairs, to whole new process systems, all of which 
focused on making the water production process safer, more reliable, 
and more cost effective for the public. In May 1998, the wholesale 
customers and the Army signed a Memorandum of Understanding for the 
Corps to continue ownership and operation of the Washington Aqueduct 
water treatment facilities
    Between 1996 and 1999, the Washington Aqueduct, its customers, and 
EPA Region 3--assisted by the District of Columbia Department of 
Consumer and Regulatory Affairs (functions now integrated into the D.C. 
Department of Health) and U.S. Fish and Wildlife Service and National 
Marine Fisheries Service--developed a comprehensive water quality study 
plan to again study the effects of the periodic solids discharges on 
the Potomac River. EPA Region 3 approved the study plan in June 1999 
and work began. The study was completed in October 2001 and Washington 
Aqueduct sent it to EPA Region 3 for its use in writing an NPDES permit 
to replace the 1989 permit that had been administratively extended in 
the intervening years. EPA issued a draft permit for public comment on 
March 27, 2002.
    The time from 1994 to the present was spent dealing with some very 
important issues--issues critical to the safe, reliable and cost 
effective production of water from Washington Aqueduct facilities to 
the benefit of customers in the District of Columbia, Arlington County 
and Falls Church. A major ownership and operation decision was made. 
The customers asked the Corps to continue operations, as they believed 
that significant operational improvements and businesslike practices 
made it an excellent utility. The financial problems surrounding the 
District of Columbia's ability to support the wholesale water 
operations have cleared up with the establishment of the District of 
Columbia Water and Sewer Authority. The Treasury loans have gone to 
construct many important process changes that improve the safety and 
reliability of the water produced to enable it to be in compliance with 
emerging regulations. It was necessary for EPA to consider both water 
quality effects and best management practices in issuing a draft 
permit. The new water quality study provided important information. 
First, any capital expenditure required to remove solids from the 
process will be governed by the technology-based, rather than the water 
quality-based requirements of the Clean Water Act. Second, whatever 
future technical procedures or processes that may be used to modify the 
way the residual solids are handled, the Corps' studies conclude that 
the Potomac River is not significantly affected by its present 
continued use.

Blue Plains Wastewater Treatment Plant Option
    House Report 107-216 and Senate Report 107-85 asked for an analysis 
of options and specifically identifies disposal at the Blue Plains 
Wastewater Treatment Plant and use of facilities envisioned in the 
proposed Combined Sewer Overflow Long Term Control Plan tunnel system 
to handle the discharge from the Aqueduct. The Chief of the Washington 
Aqueduct has met with the general manager of the District of Columbia 
Water and Sewer Authority (DC WASA) to discuss how the latter 
alternative might be added to the alternatives enumerated earlier in 
this report. The two options that involve DC WASA will require 
extensive engineering and economic study that exceed the time allotted 
by the Committees to respond to the House and Senate Reports. It should 
be noted that a final Long Term Control Plan has not yet been submitted 
to EPA (this is expected to occur later in 2002) and that any plan 
developed by DC WASA will be subject to review and approval by EPA. The 
impacts of additional solids loading on the Blue Plains Advanced 
Wastewater Treatment Plant, the feasibility of handling these solids at 
the plant and the significant costs of construction and operation of 
facilities that could be required have not been evaluated to the degree 
that any conclusion may be reached about the viability of this option.

Dredging and Disposal Operations
    Washington Aqueduct undertook a significant dredging operation of 
the Dalecarlia Reservoir between 1996 and 1999. This project was 
necessary to increase the retention time of water in the reservoir to 
improve pretreatment--specifically the natural sedimentation of 
particulate matter from the raw water. In the design of this project, 
great care was taken to analyze the material being removed and to 
determine appropriate disposal sites. In that analysis, transportation 
routes became a key factor. Because of the load limitations on 
MacArthur Boulevard from the Dalecarlia site north into Maryland (which 
are due to the raw water conduits being located directly beneath the 
roadway), truck traffic would have to be routed either to Western 
Avenue or Massachusetts Avenue to go north. To go south, the route 
would be MacArthur Boulevard to Key Bridge. Trucks are prohibited from 
using the Clara Barton Parkway and have great difficulty negotiating 
the right turn at Arizona Avenue on to Canal Road in an attempt to get 
to Chain Bridge and into Virginia. Even though this operation to haul 
away the Dalecarlia Reservoir sediment was conducted with great care, 
it proved to be a major concern for the safety and quality of life of 
the community. It was evident that any permanent major trucking 
operations from Dalecarlia would face significant obstacles.

Pipeline Alternative
    Based in part on the dredging and disposal experience described 
above, another alternative that might be considered is construction of 
a pipeline to a location some distance from the Dalecarlia water 
treatment plant. Thickened solids would be pumped through the pipeline 
to a storage location (e.g., an abandoned quarry) or to a remote 
processing site for dewatering and subsequent disposal. This option 
also will require extensive engineering and economic study (as well as 
site development). This option and other options would need to be 
evaluated further using the results of the water quality studies and 
best professional judgment to determine Best Conventional Technology/
Best Available Technology for the Washington Aqueduct.
Time Required to Implement Options
    After the engineering and economic studies of the various options 
have been developed, the environmental analysis, public involvement and 
decision-making process required by NEPA would take more than a year to 
complete. The amount of time required for final design and construction 
would depend on the alternative selected, but would normally take 
approximately five years (two years for design and three years for 
construction). No estimates on costs are available yet.

Draft Permit
    Washington Aqueduct and its wholesale customers are evaluating the 
draft NPDES permit that EPA Region 3 has issued for public comment. The 
Aqueduct will work with EPA to clarify the elements of the permit that 
employ the principles of best professional judgment in order to make a 
precise determination of Best Conventional Technology/Best Available 
Technology.
                                 ______
                                 
    Mr. Izzo. The Army will continue to work closely with the 
EPA and other Federal agencies to do what is best for the 
environment and to ensure the availability and safety of the 
drinking water that the aqueduct supplies to this region.
    Again, I thank you for the opportunity to be here this 
morning to apprise the Committee about the operations of the 
Washington Aqueduct and to respond to your questions.
    [The prepared statement of Mr. Izzo follows:]

Statement of Dominic Izzo, Principal Deputy Assistant Secretary of the 
           Army for Civil Works, U.S. Army Corps of Engineers

    Mr. Chairman and members of the Committee, thank you for inviting 
me to testify before you today. I am Dominic Izzo, the Principal Deputy 
Assistant Secretary of the Army for Civil Works.
    You invited a representative of the Army here today to provide 
information on the Washington Aqueduct and its legally permitted 
discharges. The Washington Aqueduct is a division within the Baltimore 
District of the Army Corps of Engineers, an organization under my 
general supervision. I would like to provide a brief background of the 
significant role the Washington Aqueduct plays in support of our 
nation's capital and the surrounding areas and then respond to the 
issues raised in your invitation.
    At the direction of Congress in 1853, the United States Army Corps 
of Engineers began construction of the water delivery system that is 
today known and operated as the Washington Aqueduct. The United States 
Army Corps of Engineers has continuously supplied water for drinking, 
fire protection, and a host of other purposes to the City of Washington 
and the District of Columbia since 1859. Many of the original 
structures from the 1850s are still in operation and many others date 
back to the 1920s. Consequently, many of the real estate interests 
acquired to support the Aqueduct's mission and the treatment processes 
currently used by the Aqueduct were acquired and functioning decades 
before the C & O Canal National Historic Park became a national park.
    Today, through the Aqueduct, the Army Corps of Engineers own and 
operate wholesale water production facilities that provide all of the 
water supplied to Washington, D.C., Arlington County, Virginia, and the 
City of Falls Church, Virginia, an area home to numerous agencies which 
support the administration and defense of this country including the 
very building we are meeting in today. By way of example, the 
Washington Aqueduct supplied the water used to fight the fires at the 
Pentagon on September 11, as it would for any fire in any one of these 
three jurisdictions. Providing high quality, safe, and affordable water 
to the approximately one million consumers in these areas, particularly 
in light of the September 11 attack on this country, is one of its 
highest priorities.
    The Washington Aqueduct is a unique Federal institution. While much 
of the Federal Government is totally or largely dependent upon 
congressional appropriations, the Washington Aqueduct operates as a 
business. It receives the funds it needs to operate by way of the fees 
it charges its three local government customers for the water it 
supplies. Capital improvements are also funded by the customers. At the 
same time, like all of the other drinking water production facilities, 
the Washington Aqueduct is regulated by the terms of the Safe Drinking 
Water Act and the Clean Water Act. The Washington Aqueduct takes its 
compliance responsibilities seriously. It operates in accordance with 
the National Pollutant Discharge Elimination System (NPDES) permits 
issued to it by both the State of Maryland and by Region 3 of the 
Environmental Protection Agency (EPA).
    You invited us to address the effects of Washington Aqueduct 
sediment discharges on the C&O Canal National Historic Park and the 
endangered shortnose sturgeon. All water treated by the Washington 
Aqueduct comes from the Potomac River. When water is withdrawn and 
brought into the treatment process, approximately half of the naturally 
occurring sediment carried by the Potomac River settles out in the 
Dalecarlia Reservoir and never returns to the Potomac River. The 
remaining sediment is forced to settle in six large basins through the 
use of a coagulant. The coagulant Washington Aqueduct uses is aluminum 
sulfate. In the ensuing chemical reaction most of the aluminum and some 
of the sulfate remains with the sediment in those basins while the 
clear water moves to the filtration and disinfection portions of the 
water treatment process.
    Periodically, these six sedimentation basins must be cleaned of the 
sediment build up. When that occurs, the contents, which include raw 
water ( i.e., river water), the accumulated sediments, and the 
accumulated coagulant, are drained to the Potomac River in accordance 
with the terms of the NPDES permit issued by EPA Region 3.
    At the last stage of the basin cleaning at the Dalecarlia treatment 
plant some finished water (i.e. drinking water) is used in fire hoses 
to push out the last of the sediments. That drinking water does contain 
chlorine, but the physical action of the water on the walls and bottom 
of the basin volatizes some of that chlorine. The remaining available 
chlorine in the drinking water used to push out the solids reacts with 
the sediment effectively using up all free chlorine potential. Since 
the issue of chlorine in the discharge from the Dalecarlia 
sedimentation basins was raised in October 2001, the Aqueduct has been 
able to take actual samples of the sediment as it is exiting the basin 
and find that, as expected, there is no free chlorine remaining to 
react with any organic matter when that sediment returns to the Potomac 
River.
    To put the discharges into perspective, the current permit allows 
discharge only when the flow of the Potomac exceeds 3.5 billion gallons 
per day. Normally a discharge event from one of the sedimentation 
basins will be completed within a 24 hour period. From the most often 
drained basins, the total volume of the discharge would be in the range 
of 12 to 18 million gallons most of which is water. The total volume of 
liquids and the suspended solids being discharged is at a maximum, well 
less than one percent of the flow of the river during that 24 -hour 
period. The volume of solids discharged to the Potomac River from the 
six sedimentation basins is half of the total volume of solids that 
were removed from the water taken from the Potomac River. The other 
half remains in the Dalecarlia Reservoir, which acts as a pre -
sedimentation basin before the raw water enters the formal treatment 
process and is dosed with a coagulant.
    With respect to the C&O Canal National Historic Park, the 
Washington Aqueduct, in accordance with EPA and State of Maryland 
permits, conducts two types of discharges. They are the just -described 
routine sedimentation basin discharges that occur approximately 16 to 
20 times a year and infrequent discharges of raw or partially treated 
water to allow for maintenance of Washington Aqueduct infrastructure.
    The routine water treatment solids, i.e., sediment, discharges use 
three conduits to get those solids to the Potomac River. One of those 
conduits is a closed pipe that runs underground through the park's 
property and discharges into the Potomac River approximately 12 to 16 
times per year. A typical discharge there lasts 12-16 hours. These 
discharges are in accordance with the EPA NPDES permit. At the point of 
discharge, the sediment enters the Potomac River below water level from 
a concrete structure slightly offshore. No sediment is deposited within 
the C&O Canal National Historic Park at that location.
    The other two conduits discharge onto Park property approximately 
75 feet from the shore of the Potomac River and follow a channel into 
the river. These discharges are also in accordance with the EPA NPDES 
permit and occur approximately 4 to 6 times per year for approximately 
12 to 18 hours. The closed discharge pipes at those locations run 
underground from the sedimentation basins and end in a headwall about 
50 to 75 feet from the river. A small channel a few inches deep at each 
location extends from the headwall, traveling perpendicular to the 
river, and transports the liquid and the solids until they enter the 
river and are mixed and carried downstream. During a discharge, the 
sediment is confined to that channel and does not otherwise affect the 
surrounding land. There is no build-up of residue from the sediment 
discharges on park land.
    With respect to the non -routine discharges to accomplish plant 
maintenance, the State of Maryland, under a Maryland General Discharge 
Permit, allows the Washington Aqueduct to discharge raw water into 
streams and on lands which cross Park property. These discharges are 
infrequent, approximately once a year.
    In only one location where infrequent discharge occurs is there the 
potential for chlorinated water to leave the Washington Aqueduct 
treatment plant and enter the waters of the State of Maryland. This may 
occur approximately 5 to 6 times per year for a few hours at a time. In 
that instance a dechlorination station is used to properly dechlorinate 
the water before it leaves the treatment plant.
    EPA has also issued Washington Aqueduct an NPDES Permit (DC0000329) 
that allows discharge of raw water dosed with coagulant should 
maintenance be required on a major conduit. The path of this discharge 
is open and crosses park property. Discharges of this nature occur 
infrequently, approximately once every two years, for approximately six 
hours. There are two other points allowed under this permit. One is to 
drain ground water from under sedimentation basins. That water goes 
directly to the Potomac River. The other is to drain water from another 
large conduit to Rock Creek. That discharge might occur only once in 10 
years and would be clear, unchlorinated water.
    All of the Washington Aqueduct's discharge points or outfalls are 
properly regulated by and comply with NPDES permits. Where other 
private or public properties are crossed, proper land usage rights have 
been obtained.
    At this time, there are no known adverse effects on C & O Canal 
National Historic Park property as a result of these discharges.
    The next issue associated with the Washington Aqueduct's sediment 
discharges that the Committee has asked us to discuss is the impact of 
the discharges, if any, upon the shortnose sturgeon. That particular 
question is the subject of current litigation brought by the National 
Wilderness Institute against a number of the Federal agencies 
testifying here today. My testimony is therefore constrained so as not 
to compromise the Government's ability to present a sound defense in 
this litigation. In accordance with the Endangered Species Act, 
consultation among the Federal agencies regarding the shortnose 
sturgeon is ongoing at this time.
    At the request and direction of the Environmental Protection 
Agency, the United States Army Corps of Engineers contracted for two 
significant scientific efforts to study the impacts, if any, of the 
sediment discharges upon the aquatic life of the Potomac River. The 
first effort was a study completed by the Dynamac Corporation in 1993. 
This report concluded that there were no apparent water quality effects 
from the release of the discharges. The second effort, based upon a 
study plan coordinated with the United States Fish and Wildlife Service 
and approved by EPA Region 3, was a study conducted by EA Engineering, 
Science, and Technology, Inc., which was completed and provided to EPA 
Region 3 on October 5, 2001. This report is based upon accepted 
scientific procedure and analysis. Based upon the results of the study 
and other information available to EPA, it appears to the Army and the 
Corps that the sediments have a negligible effect upon the Potomac 
River.
    EPA Region 3 issued a draft NPDES permit concerning Washington 
Aqueduct's sediment discharge in March 2002. The public comment period 
is open until June 28.
    In conclusion, the United States Army and the Corps of Engineers 
continue to work closely with the EPA and other Federal agencies to 
provide independent, thoughtful and scientific information for them to 
use in preparing permits and otherwise regulating the activities of 
Washington Aqueduct. Washington Aqueduct acts to do what is best both 
for the environment, and to ensure the availability and safety of the 
drinking water we supply to this region.
    Again I thank you for the opportunity to be here this morning to 
apprise the Committee of the operations of the Washington Aqueduct and 
to respond to your questions.
                                 ______
                                 
    Mr. Radanovich. Thank you very much, Mr. Izzo.
    Next up is Mr. Ben Grumbles, Deputy Assistant Administrator 
for Office of Water, Environmental Protection Agency

 STATEMENT OF BEN GRUMBLES, DEPUTY ASSISTANT ADMINISTRATOR FOR 
     OFFICE OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY

    Mr. Grumbles. Thank you, Mr. Chairman. I am Ben Grumbles, 
with the Environmental Protection Agency. First, let me convey 
Administrator Whitman's regrets for not being able to be here 
to participate in this important hearing.
    The second thing, right off the bat, I want to say perhaps 
now more than ever this hearing is a very timely one, 
particularly when newspaper stories raise questions that there 
is a lot of confusion as to exactly what the situation is.
    What I would like to do is address the situation and EPA's 
role in this important issue. I have to say that this morning 
there was a headline in the Washington Times that said, ``EPA 
says toxic sludge is good for fish.''
    I would just like to say that that is absolutely untrue. 
That is not the case at all. In fact, we are still trying to 
determine the basis upon which that article was written and the 
document that was relied upon.
    We don't even know that it was an EPA employee who said 
something like that and it was certainly taken out of context. 
The basic point is that EPA does not believe toxic sludge is 
good for fish.
    In the situation here, what we are talking about is 
permitting under the Clean Water Act of sediments from the 
Washington Aqueduct. What I would like to do is just talk a 
little bit about EPA's role. EPA is the permitting authority in 
the District of Columbia for Clean Water Act discharges and 
that is what we are addressing here, the discharges that 
include the sediments from the basins in the Dalecarlia and the 
Georgetown Reservoirs under the control of the Corps of 
Engineers.
    The NPDES permit, the Clean Water Act permit, that is 
currently in force, allows for the discharge of residual solids 
from cleaning out the sediment basins used to treat water taken 
from the Potomac River. State-issued permits throughout the 
Nation frequently allow such discharges, but when the receiving 
water body is a high volume river such as the Potomac the 
permits limit the discharges to high flow conditions when the 
river naturally contains a large quantity of solids.
    As issued in 1989, the permit required the Corps to conduct 
a study of toxicity of the discharge. The Corp's contractor 
issued a report in February of '93 concluding that there were 
no apparent water quality effects from the releases of the 
discharge.
    One of the points that we want to make and try to emphasize 
here is that over this period of time, since the discharges 
haven't been occurring, we have not gathered, and we don't 
believe there is conclusive evidence, scientific evidence that 
there is a toxic effect or an adverse water quality impact.
    That doesn't mean that we are not concerned about any kind 
of discharges, sediments and residuals to the Potomac River or 
any river. But the point is that some of the studies, including 
the study in 1993, did not indicate apparent water quality 
adverse impacts.
    Now, in early '95 EPA prepared for comment a draft permit 
that would have required the construction of a residual 
recovery facility to dewater and remove solids from the 
treatment plant.
    At the same time, Congress was drafting comprehensive 
legislation to amend the Safe Drinking Water Act and earlier 
drafts in the law itself actually enacted included different 
provisions that could have produced drastic changes in the 
financial and organizational structure of the aqueduct.
    So, EPA, during that time, took from that, these 
Congressional discussions, a clear message that it would be 
premature and inappropriate, even potentially wasteful, to 
issue an NPDES permit during all those discussions since very 
much at issue was who would own and operate and how the 
facility itself would be structured.
    Let me address some of the fish issues in the remaining 
amount of time that I have. EPA, the Corps and the wholesales 
customers had an agreement on October 3, 1997, to undertake a 
detailed study of the water quality effects. The study was 
vital to establish a sound scientific basis for any new 
requirements in a re-issued Washington Aqueduct permit.
    Also, while the study was being developed, EPA entered into 
an inter-agency agreement with Fish and Wildlife Service in 
April 1998 for help in developing interim discharge guidelines 
for the aqueduct sediments.
    In March 1999, the Fish and Wildlife Service submitted in a 
report to EPA the results and recommendations and we believe 
those recommendations from the expert panel are in large degree 
captured and reflected in the draft permit.
    We also approved a plan for a discharge study in 1999 that 
you have heard some reference to. The report itself was 
finalized on October 10, 2001. Based on the results of the 
study, EPA has concluded that the sediments appear to have a 
negligible effect upon juvenile and adult fish in the Potomac 
River.
    EPA has also concluded that the discharge is not acutely 
toxic and that the chronic toxicity tests suggested that the 
discharge is not currently affecting juvenile and adult fish.
    Mr. Chairman, it is important in issuing and renewing 
permits to look at the science and see exactly what the science 
is saying, not to rely on anecdotal and news reports, but to 
really look at exactly what the results are.
    The draft permit attempts to reflect that science, but also 
acknowledges, as you yourself have pointed out on numerous 
occasions, there are some real questions about the impacts. So, 
the draft permit that is currently subject to the public 
comment period, does include some additional safeguards.
    I think the most important ones is that the permit itself 
includes a requirement for a reduction in the sediments being 
discharged to the Potomac River, an 85 percent reduction 
compared to the inflow going into the plan of the raw Potomac 
River water.
    Another important safeguard in the draft permit is the 
prohibition on discharges of the sediment during the spring 
spawning season, from February 15 through June 15.
    Another provision is that there be monitoring for any 
detectable levels of chlorine where processed water has been 
used to flush out the sediment basins.
    Another important safeguard is the requirement that there 
be a study conducted on the actual presence of the shortnose 
sturgeon. Some of the expert witnesses here today have also 
been addressing that, that to date we have not seen this 
shortnose sturgeon show up within 50 miles of the outfalls. But 
that doesn't mean that that is not a continuing area of concern 
that we want to continue to look at. That is clearly an 
important message that needs to be conveyed.
    So, the draft permit, we believe it is certainly not a 
final permit, but we are looking forward to the comments, the 
basis of this hearing, to really get into the additional 
issues.
    Mr. Chairman, the last thing I would like to say is that I 
know Administrator Whitman takes very seriously some of the 
concerns that some folks have raised about the potential 
impacts of the sediments, the possible presence of metals or 
toxics, but science hasn't borne that out yet.
    But we are very concerns and continue to work with the 
other agencies through consultation under the Endangered 
Species Act and through gathering additional data to make sure 
that the sediment that is being discharged is not harmful to 
the aquatic environment.
    Thank you very much, Mr. Chairman.
    Mr. Radanovich. Thank you, Mr. Grumbles. Thank you for 
coming before the Committee. We appreciate your testimony.
    [The prepared statement of Mr. Grumbles follows:]

 Statement of Benjamin H. Grumbles, Deputy Assistant Administrator for 
              Water, U.S. Environmental Protection Agency

INTRODUCTION
    Good morning, Mr. Chairman and Members of the Committee. I am Ben 
Grumbles, Deputy Assistant Administrator for Water at the U.S. 
Environmental Protection Agency (EPA). First, let me convey Governor 
Whitman's regrets for not being able to be here today to speak with 
this Committee. Second, I appreciate this opportunity to provide the 
EPA's views on the Washington Aqueduct, and to discuss the National 
Pollutant Discharge Elimination System (NPDES) permit required under 
the Clean Water Act.

BACKGROUND
    The Washington Aqueduct is truly unique. The history, ownership, 
operations, regulation, and financing of the Aqueduct, coupled with the 
various responsibilities of the Federal, State, and local agencies, and 
the District of Columbia, have presented--and continue to present--some 
interesting challenges.
    Ordinarily, the States assume the primary authority for regulatory 
implementation and enforcement under the Clean Water Act (CWA) and the 
Safe Drinking Water Act (SDWA), as Congress intended. Forty-nine States 
have primary enforcement authority for supervising public water systems 
under SDWA, and forty-four States are authorized to carry out NPDES 
permitting responsibilities under the CWA. EPA takes on the permit-
issuing or primary enforcement authority that States ordinarily assume 
only in those few situations in which a particular State has not 
assumed this authority. Such is the case in the District of Columbia 
for both the CWA and SDWA regulatory programs.
    Two unique factors should be noted when discussing the Aqueduct's 
compliance with SDWA and CWA requirements. First, there is no other 
situation in the country where a Federal agency is, by law, 
specifically assigned the role of providing municipal drinking water 
treatment--which, in this case, means serving over a million customers 
in multiple jurisdictions. Second, as noted in the Senate Environment 
and Public Works Committee's November 1995 report on S. 1316--which 
became the SDWA Amendments of 1996--``The Corps of Engineers, as owner 
of the system, has no authority to finance capital improvement projects 
necessary to meet Federal drinking water standards.'' [S. Rpt. 104-169, 
p. 99]
    Not only was the Aqueduct given a mission that is unique within the 
Corps (and within the entire Federal Government as well), but its 
pursuit of this mission has also been complicated by its lack of the 
same access to capital funds that traditional municipalities or 
drinking water authorities have. Important Congressional initiatives to 
address the Aqueduct's situation were being formulated and subsequently 
implemented for some time while EPA was proceeding to revise the 
Aqueduct's discharge permit for drinking water treatment residuals, and 
EPA has very properly recognized and respected those initiatives.

EPA'S ROLE AS NPDES PERMITTING AUTHORITY
    EPA is the authority in the District of Columbia responsible for 
issuing NPDES permits, in accordance with Section 402 of the CWA, and 
for regulating public drinking water systems in the District under 
SDWA, acting in both cases in a role analogous to that undertaken by 
most States. EPA works closely with the Washington Aqueduct and its 
wholesale customers--the District of Columbia Water and Sewer 
Authority, and Arlington County and Falls Church, Virginia--to insure 
that the Aqueduct and its wholesale customers comply with all 
applicable requirements related to drinking water in order to provide 
customers with high quality drinking water. EPA also has issued NPDES 
permits for discharges from the Aqueduct into waters of the U.S., and 
oversees the facility's compliance with its permit.
    Finally, EPA has responsibilities under section 7 of the Endangered 
Species Act (ESA), including the obligation to ensure that its actions 
are not likely to jeopardize the continued existence of listed 
endangered and threatened species or result in the destruction or 
adverse modification of designated critical habitat. The ESA 
complements EPA's and the States' responsibilities under the CWA to 
restore and maintain the biological integrity of the Nation's waters.
    In general, the States and EPA (where a State lacks permitting 
authority) apply the following procedures in issuing an NPDES permit. 
Upon receiving an application for an NPDES permit (or in this 
particular case, an application to renew the permit), EPA begins to 
draft the permit. A major part of this work is preparing limits on the 
discharge of pollutants, based on technology requirements and water 
quality impacts. Limits may set conditions on the pollutants to be 
discharged, such as: restrictions on the mass and/or concentration of 
the pollutants; timing of the discharge; and, monitoring requirements. 
The responsible EPA Region often consults with Federal and State 
agencies about possible provisions before it completes the draft 
permit. EPA also includes general conditions applicable to any NPDES 
permit, and prepares a fact sheet (a detailed explanation of the permit 
and its terms) or a statement of basis (a less detailed explanation). 
In the few States that lack NPDES permit authority, prior to seeking 
public comment on the permit, EPA will also send a draft to the 
appropriate State agency to certify that the permit will be protective 
of the State's water quality standards.
    After EPA has completed the draft permit, the Agency sends out a 
notice of the draft permit, a solicitation of comments, and the 
necessary information to request a hearing. EPA sends the notice to, 
among others: the permittee; other Federal agencies, including the Fish 
and Wildlife Service (FWS) and National Marine Fisheries Service 
(NMFS); State agencies with responsibility over fish, shellfish and 
wildlife in the State; and persons who are on a mailing list EPA 
maintains of individuals who have expressed an interest in NPDES 
permits. EPA's NPDES regulations note the Agency's obligation to comply 
with the ESA as well as the possibility that EPA may impose conditions 
based upon comments from FWS or NMFS. Notice of the draft permit is 
also published in a daily or weekly newspaper within the area affected 
by the discharge. Anyone may ask for a copy of the draft permit, the 
fact sheet (or statement of basis), and at the same time request a 
public hearing. Depending upon the interest in the permit, EPA may hold 
a public hearing to take comments on the draft permit.
    After the public comment period is closed, EPA reviews the comments 
and prepares a document responding to them. At the same time, the 
Agency prepares a final permit, making any changes needed to respond to 
the comments. If the changes required are such that the original draft 
permit would not provide sufficient notice of the revised permit's 
contents, EPA will repeat the steps above, in effect issuing a new 
draft permit and providing an additional public comment period. EPA 
then issues the final permit, and sends a notice to anyone who sent in 
comments on the draft permit that the Agency has taken this action.
    In taking any action to issue a permit, EPA must comply with the 
applicable requirements contained in section 7 of the Endangered 
Species Act (ESA) and 50 C.F.R. Part 402. Under section 7(a)(2), EPA 
must ensure, in consultation with the FWS and NMFS, that issuance of 
the permit is not likely to jeopardize the continued existence of any 
listed threatened or endangered species or result in the destruction or 
adverse modification of designated critical habitats. EPA has entered 
into a Memorandum of Agreement with the Fish and Wildlife Service and 
National Marine Fisheries Service that describes the process that the 
agencies will follow in consulting on NPDES permits. This process, 
which tracks the requirements in 50 C.F.R. Part 402, includes a 
determination by EPA whether the permitted activity may affect a listed 
species and, if so, EPA requests either informal or formal 
consultation. Based on the consultation, EPA imposes any permit 
conditions needed to ensure that the discharge is not likely to 
jeopardize the continued existence of a listed species or result in the 
destruction or adverse modification of designated critical habitat. 
Should the Service(s) anticipate incidental take of listed species, EPA 
also considers changes to the permit required by the Service(s) for 
incidental take to be authorized.
    Any person who participated in the permit-issuance process is 
entitled to appeal a final permit to an administrative body at EPA, the 
Environmental Appeals Board, which can review whether the permit is 
based on a finding of fact or conclusion of law which is clearly 
erroneous, including a claim that the permit fails to comply with the 
ESA.

PERMITTING OF WASHINGTON AQUEDUCT DISCHARGES
    The Corps owns and operates the Washington Aqueduct facility. The 
functions of the facility include the collection, purification, and 
pumping of an adequate supply of clean drinking water for the District 
of Columbia, Arlington County (VA), and the City of Falls Church (VA). 
The Washington Aqueduct provides the drinking water supply for 
approximately one million residents of the District of Columbia and 
Northern Virginia. The area residents receive water through 
distribution systems owned and operated by the Water and Sewer 
Authority, ``WASA'' (for the District of Columbia), Arlington County, 
and the City of Falls Church (the ``Wholesale Customers''). Drinking 
water distribution is the responsibility of the Wholesale Customers.

The 1989 Permit and Its Revision
    On April 3, 1989, EPA reissued NPDES Permit No. DC 0000019 to the 
Corps for the Washington Aqueduct facility, effective date May 3, 1989. 
(EPA had issued the original permit in 1983.) The contents of this 
permit were devised on a basis similar to that used by States in 
issuing many permits throughout the country--on the permit writer's 
Best Professional Judgment, which is used to determine what limitations 
to apply in the absence of relevant Effluent Limitation Guidelines. In 
this case, the NPDES permit allows for the discharge of residual solids 
from cleaning out the sedimentation basins used in filtering water 
withdrawn from the Potomac River. State-issued permits throughout the 
nation frequently allow such discharges when the receiving water body 
is a high-volume river such as the Potomac. The Aqueduct permit does 
not require any treatment of the discharge, but limits the timing of 
the discharges to the Potomac to high flow conditions, when the river 
naturally contains a large quantity of solids.
    The permit currently in use contains monitoring requirements but no 
specific effluent limits on Total Suspended Solids, Total Aluminum, 
Total Iron, and Flow in the permit. The permit does prohibit the 
discharge of floating solids or visible foam. The permit also requires 
the Aqueduct to meet a pH level of not less than 6.0 standard units nor 
greater than 8.5 standard units. At the time of the discharge, the 
Aqueduct must take monitoring samples of pH, Total Suspended Solids, 
Total Aluminum, Total Iron, and Flow, to provide EPA, through Discharge 
Monitoring Reports, a representation of the discharge's volume and 
nature.
    As issued in 1989, the NPDES permit required the Corps to conduct 
several studies on the toxicity of the discharge. The Corps' contractor 
completed the initial studies and issued a report in February 1993, 
concluding that there were no apparent water quality effects from the 
release of the discharges.
    The 1989 permit had an expiration date of May 2, 1994. The Corps 
applied for a new permit before the expiration date, and under 5 U.S.C. 
Sec. Sec. 558(c) and 40 C.F.R. Sec. Sec. 122.6(a), the prior permit 
continues in effect by operation of law pending the NPDES authority's 
(here, EPA's) decision to issue a new permit.
    In early 1995, EPA prepared a draft permit for comment, and sent 
copies to the District of Columbia and the Aqueduct. In February 1995, 
the Wholesale Customers and the Aqueduct stated their significant 
concerns with proposed new conditions in the draft permit that would 
limit the concentrations of Iron, Aluminum and Total Suspended Solids 
in the Aqueduct's discharge. These limits would have required the 
construction of a residual recovery facility. This is a facility built 
adjacent to a drinking water treatment plant to dewater the solids 
(largely silt and organic material) removed from the water during 
coagulation and filtration, which occur prior to disinfection. 
Depending on the composition of the dried solids, they are either used 
for some commercial purpose (directly or after further treatment) or 
trucked to a landfill for disposal.
    The Wholesale Customers expressed concern that the cost of such a 
facility would be unaffordable for many and excessive in relation to 
what they and the Aqueduct considered were hypothetical or vague 
environmental benefits from a recovery facility.
    As EPA was considering these concerns, Congress was drafting 
comprehensive legislation to reauthorize and reform the Safe Drinking 
Water Act. Contrasting bills had passed both the House and Senate in 
late 1994, but the 103rd Congress had adjourned before a compromise 
agreement could be reached. With this base of prior action to build on, 
a number of locally significant issues, like the future of the 
Aqueduct, were discussed at a relatively early point in the 104th 
Congress. A March 31, 1995 SDWA discussion draft of Sen. Kempthorne 
(then Water Subcommittee Chairman on the Senate Environment and Public 
Works Committee) included a provision authorizing the Corps to borrow 
``such funds as the Secretary of the Army determines are required to 
finance capital improvements for the Washington Aqueduct.'' The 
relevant provision in Sen. Kempthorne's June 26, 1995 discussion draft 
took the form that was included in S. 1316 as passed by the Senate in 
November 1995.
    Congressional discussions of the Aqueduct's financial situation 
were occurring at the same time as the Wholesale Customers and the 
Corps were questioning the cost and environmental benefits of the draft 
permit. At least one clear message seemed to emerge: that EPA should 
not issue an NPDES permit that would preempt or prematurely direct the 
Aqueduct's capital investment priorities separate from, ahead of, or in 
conflict with how Congress might direct the Aqueduct to address its 
many capital needs in the SDWA Amendments.
    As a result, in April 1996, EPA agreed to delay the issuance of the 
permit. This was consistent with both the 1995 Senate-passed provision 
and Section 306 of the SDWA Amendments (Public Law 104-182) enacted 
August 6, 1996, which directed the Aqueduct and its Customers to 
explore the feasibility of turning over the ownership and operations of 
the Aqueduct to a non-federal entity.
    Section 306 also required that, before reissuing the NPDES permit, 
EPA must consult with the Customers ``regarding opportunities for more 
efficient water facility configurations that might be achieved through 
various possible transfers of the Washington Aqueduct. Such 
consultation shall include specific consideration of concerns regarding 
a proposed solids recovery facility, and may include a public 
hearing.''
    On May 5, 1998, the Corps and the Wholesale Customers signed a 
Memorandum of Understanding (MOU). This MOU included their joint 
``determination that a desirable option is for the ownership, 
operation, maintenance, and management of the Washington Aqueduct to 
remain with the Army, ...and for the creation of a stable and mutually 
beneficial partnership ... between the Wholesale Water Customers and 
the Corps of Engineers.'' Section 306(e) authorized the Corps to borrow 
$75 million over three years for Aqueduct capital improvements; the 
Congressional Budget Office cost estimate for S. 1316 in Senate Report 
104-169, referenced above, states that ``[t]he Corps estimates that the 
modernization would cost about $275 million in 1995 dollars.'' [p. 111] 
However, the Wholesale Customers' recognition of their responsibility 
to help finance Aqueduct capital improvements, while not yet applied in 
practice, should finally enable the Aqueduct to finance a 
comprehensive, long-term program of asset management, including ongoing 
regulatory compliance.
Fish Issues
    After discussions among the Corps, EPA, and the Wholesale 
Customers, these parties agreed on October 3, 1997, that contractors 
for the Wholesale Customers would undertake a new study of the water 
quality effects of the Aqueduct's discharge and would address issues 
raised by EPA (``Discharge Study''). The results of the Study, 
completed last Fall, are discussed later in this testimony. The parties 
agreed that the Discharge Study would include six parts: an effluent 
dilution and fate study, where a computer simulates river flow and the 
suspended solid's plume to determine acute and chronic dilution factors 
as a function of effluent loading and river flow; effluent toxicity 
testing to determine the toxicity of discharges to freshwater species; 
effluent chemical characterization, using existing effluent discharge 
data to calculate preliminary projections of receiving water 
concentrations in comparison to water quality criteria; an analysis of 
the Potomac's fishery to determine the effect of the discharge upon key 
anadromous and resident fish species; an analysis of the Potomac's 
macroinvertebrate community to characterize the community prior to and 
after discharge; and, an analysis of a modification of the aluminum 
criteria in the event the other parts of the Aqueduct Study show that 
this would be desirable. EPA believed this study was necessary to 
establish a scientifically-sound basis for any new requirements written 
into the reissued Washington Aqueduct permit. New effluent limits and 
special conditions in a revised NPDES permit could mandate the 
expenditure of large amounts of ratepayer funds, and, taking the role 
of a State agency responsible for long-term public water system 
supervision, EPA recognized especially the challenges this would raise 
given the Aqueduct's unique financing issues.
    While the study was being developed, EPA entered into an 
Interagency Agreement with Fish and Wildlife Service ('FWS') in April 
1998 for help in developing interim discharge guidelines for the 
Washington Aqueduct sediments. The purpose of this work was to 
determine whether or not there were any near-term cost-effective 
remedies which the Washington Aqueduct could employ to avoid potential 
impacts to fish species that may migrate or spawn in the Potomac River 
in the vicinity of the Aqueduct discharges. EPA convened a panel of 
fisheries biologists from the District of Columbia, National Marine 
Fisheries Service, State of Maryland, FWS and the Interstate Commission 
on the Potomac River Basin (1998 Fisheries Panel) to provide 
recommendations on minimizing impacts to migratory fish from sediment 
discharges at the Aqueduct, while EPA and the Corps pursued a long-term 
solution.
    In March of 1999, the FWS submitted, in a report to EPA, the 
results and recommendations of the Fisheries Panel's study, including 
that there should be no discharge in the Spring when anadromous fish 
spawn, and that rocks by one of the outfalls should be moved to 
facilitate the flow and dispersion of the discharge into the river.
    On June 24, 1999, EPA approved the study plan for the Discharge 
Study developed in part with technical assistance from the FWS 
Environmental Contaminants Branch of its Chesapeake Bay Field Office. 
The Discharge Study was performed by scientists at EA Engineering, 
Science & Technology, Inc. under contract to the Metropolitan 
Washington Council of Governments on behalf of the Wholesale Customers. 
EPA held public meetings and informational sessions attended by FWS, 
most notably in the Spring of 2000 and on October 10, to explain the 
techniques used during the collection of environmental data for the 
Discharge Study.
    Field work for the studies began in August of 1999 and was 
completed in May of 2001. The Discharge Study Report was finalized on 
October 10, 2001. Based upon the results of the Study (which analyzed 
observations made over the 21 month field study period) and other 
available information, EPA has concluded that the sediments appear to 
have a negligible effect upon juvenile and adult fish in the Potomac 
River. EPA has also concluded that the acute toxicity studies showed 
that the discharge is not acutely toxic, and the chronic toxicity 
tests, while not conclusive, seemed to support a judgment that the 
discharge is not currently affecting juvenile and adult fish. The Study 
did suggest a potential risk of smothering fish eggs and larvae if they 
are in the river at the time of the discharge.
    Based on NMFS's continued concern about the potential presence of 
shortnose sturgeon, and the Fisheries Panel's similar concern that the 
discharge may have a smothering effect on early life stages of fish, 
and in light of our ongoing section 7 consultation about the sturgeon, 
EPA has prepared a draft permit that goes beyond the present permit 
requirements to protect the river and its living resources.
Draft Permit
    Draft permit number DC 0000019 was issued by EPA Region III on 
March 28 for public comment. It contains several new provisions 
including:
     A prohibition against the Washington Aqueduct discharging 
during the spawning season for the native fish of the river, which runs 
from February 15 to June 15, unless specifically allowed to do so by 
EPA because of emergency conditions.
     A requirement that drainage times be lengthened for the 
two of the sedimentation basins at the Aqueduct, and that the amount of 
untreated process water used to flush and clean these basins be 
increased, resulting in a less concentrated effluent.
     A requirement that, as a technology-based control, a 
conceptual study plan be completed to identify engineering controls 
capable of removing a total of 85% of all incoming solids, and that 
implementation of the plan begin within 5 years.
     A requirement to remove the rocks in the vicinity of one 
of the outfalls pursuant to the recommendations of the Fisheries Panel.
     A requirement that the Washington Aqueduct perform a 
study, using an approved National Marine Fisheries Service (NMFS) 
protocol, to evaluate whether shortnose sturgeon are present in 
District of Columbia waters of the Potomac River. In its planning for 
and performance of this study, the Aqueduct must consult with NMFS and 
the U.S. Fish and Wildlife Service.
    In the preparation of this draft permit, EPA took several steps to 
ensure adequate public involvement from all interested parties. This 
included informal consultation with the D.C. Department of Health, and 
we believe that the District of Columbia will certify under Clean Water 
Act Section 401 that the new permit complies with D.C. Water Quality 
Standards.
    Informal consultation with the FWS and NMFS--to ensure that 
endangered species and habitat are protected--has also occurred, with 
the constructive results discussed in this testimony. In addition, 
since the State of Maryland and the Commonwealth of Virginia share the 
waters of the Potomac with the District of Columbia, they too were 
provided the opportunity to comment on the draft permit. EPA and the 
Washington Aqueduct also hosted a public meeting on March 26 to explain 
to local community members the provisions in the draft permit. Finally, 
pursuant to requests from both Congress and the Washington Aqueduct, 
the public comment period for the draft permit, initially scheduled to 
run until Monday, April 29, was extended by EPA to run until June 28.
ESA Consultation
    The ESA provides for consultation with the appropriate Federal 
wildlife agency when a Federal action may affect endangered species. 
The ESA regulations give a Federal Agency two options for consultation: 
informal or formal. As provided by the regulations, informal 
consultation is designed to determine whether formal consultation is 
necessary.
    EPA has been engaged in ``informal'' consultation under the 
Endangered Species Act with the National Marine Fisheries Service 
(NMFS) for about a year, concerning the issuance of the NPDES permit 
for the Washington Aqueduct and possible effects on the Federally-
listed endangered shortnose sturgeon. While the draft permit's 
prohibition on discharges during spawning season was designed to 
protect fisheries in the river, EPA and NMFS have this month agreed to 
enter into formal consultation to determine the effects of the limited 
potential for emergency discharges from the Aqueduct on shortnose 
sturgeon if sturgeon were to be present at this location during such 
emergency discharges. According to NMFS, there are no data documenting 
the presence of sturgeon in waters affected by the discharge or within 
55 miles of those affected waters. Because additional data gathering 
would be necessary to conclusively prove its presence or absence in 
those waters, EPA and NMFS are taking a conservative approach by 
formally consulting, to determine the response to this lack of 
information in the context of the draft permit. The NMFS is currently 
reviewing the matter, and will provide a Biological Opinion with 
recommendations to EPA.
    EPA will then address whatever recommendations are contained in the 
Biological Opinion, and after review of, and response to, any comments 
received in the public comment period, will issue the final permit. The 
length of time it will take to issue a final permit depends on a number 
of factors, including when EPA concludes its consultation with NMFS, 
the number and content of public comments received, and results of 
Congressionally mandated consultation with the Customers.

CONCLUSION
    In summary, by following the requirements of the Clean Water Act, 
the Endangered Species Act, and the Safe Drinking Water Act, EPA 
believes that we can issue a new permit for the Washington Aqueduct 
that will protect the river's ecosystem and aquatic life.
    I would like to thank the Members of this Committee for inviting 
EPA to participate in this important hearing. The Administration shares 
the Committee's concern for the preservation of our nation's park 
system and protection of endangered species, and commends the Chairman 
for his interest in this particular issue.
    This concludes my prepared remarks, and I would be happy to answer 
any questions that you may have at this time.
                                 ______
                                 
    Mr. Radanovich. I am going to open it up with a few 
questions and open it up to different members of the Committee 
for questions.
    I would start with Mr. Grumbles by asking the question, I 
have a bit of concern over the permitting process that the EPA 
went through. As you know, and I have just been informed by the 
Department of Commerce or NMFS that they have just entered into 
formal consultation regarding the effects of the dumping on any 
endangered species including the shortnose sturgeon.
    In your testimony you mentioned that you made the 
determination that it was not harmful to fish and wildlife and 
so therefore the EPA determined it was allowed to proceed, 
although to my knowledge the shortnose sturgeon has been listed 
since the 1970's, I think. It has been present in there. To my 
knowledge there has never been any formal consultation going 
on.
    Please explain your role, how you came to those 
conclusions, and also your relationship, when you develop 
permits like this, do you interrelate with NMFS on that and 
what has been NMFS' response to something like that?
    Mr. Grumbles. A couple of points: The first one is that I 
think for well over a year we have been engaged in ``informal'' 
consultation with NMFS over the presence and potential impacts 
to the shortnose sturgeon.
    I guess based on the ongoing questions and the fact that 
there were still some issues that had not been fully resolved, 
and based on an abundance of caution, recognizing that this is 
a situation where you need to have a conservative approach and 
follow up with more information, we agreed on June 13th to 
enter into a formal consultation.
    Now, all of this is in the context of EPA issuing a Federal 
Clean Water Act permit. Now, the timeframe that we have set out 
is that our comment period closes on June 28th. After that 
comment period closes, we will continue to be working with, 
certainly with NMFS in terms of the formal consultation.
    It may be, Mr. Chairman, based on the nature of the public 
comments and how we respond, if we recommend substantial 
changes to the draft permit, we would then propose a second 
round of public comment based on those changes. Then, in terms 
of the formal consultation with NMFS, which could be up to 135 
days from June 13th, we would take their considerations and 
their comments into account.
    Perhaps by the end of the year--it just depends on the 
timeframe--we would be issuing a final permit.
    Mr. Radanovich. I guess what is unclear to me is that the 
species was listed in the 1970's, the shortnose sturgeon. How 
long is the permitting of the dumping of the sludge into the 
Potomac been allowed? I would guess that it has been about that 
long.
    Why is it now that the EPA is finally engaging itself, and 
it may be a question for Mr. Keeney as well, finally there is 
some formal consultation to find out that while this dumping is 
going on where it is known to be a habitat for an endangered 
species, have you finally waited this long to get into formal 
consultation.
    We are glad of the fact that you are, but why did it take 
so long?
    Mr. Grumbles. I think your question is a fair one and I 
think the response is that while understanding that the 
shortnose sturgeon has been listed for quite some time, the 
real question was the geographic proximity of the sturgeon and 
the relevance of it to the precise locations of the outfalls.
    Mr. Radanovich. It has been known that that is potential 
habitat, where the sludge is being dumped, right? I mean that 
is obvious to everybody.
    Mr. Grumbles. The information that I think we had was that 
back in the late 1800's there was a spotting of shortnose 
sturgeon in the area, and based on the information I have from 
EPA, there had not been any more recent sightings until we get 
to the 1996 one spotted about 50 miles from the outfall itself.
    So, there wasn't any compelling, convincing scientific 
evidence over the decades that the shortnose sturgeon actually 
was within an area where it could be impacted.
    Mr. Radanovich. But the point under the law is that if it 
is potential habitat, you have to treat it as if the endangered 
species is present. That is what the law reads.
    I will conclude my round of questions by giving you a 
couple of examples. In 1997, in January in California, there 
was a flood along the entire west coast. A levy broke and 
killed three people. The story behind it was that the water 
agency that knew that the levy was weak was prohibited from 
going in and effecting repairs to protect human life, because 
it was the habitat of the endangered Elderberry Bark Beetle. 
And there was absolutely no evaluated that that bark beetle was 
present. But it was known to be the habitat of one, so they 
were kept from all that time, up until the flood hit and killed 
three people, from going into that are because it was a 
suspected habitat.
    Another perfect example is what happened up in Klamath 
recently with the Sucker Fish in the Klamath River that is 
known to be the habitat of the Sucker Fish. The Sucker Fish 
wasn't present. Nevertheless, not your agency, but a different 
Federal agency came in and shut off water to 1200 farmers that 
year, bankrupting most of them, because it was the known 
habitat of an endangered species.
    This is why we bring this up in this case, because over 25 
years, ever since the shortnose sturgeon was listed, this area 
where the dumping is occurring is a known habitat of the 
endangered species and under normal law that is applied in my 
area of the world, there would have been a cease and desist 
order issued 20 years ago.
    Mr. Grumbles, I am done with my questioning. You can 
response quickly. We are going to be asking a lot of questions, 
but I want to give everybody else a chance to ask them.
    Mr. Grumbles. Mr. Chairman, I want to add that just because 
it is potential habitat doesn't mean that consultation is 
necessary.In fact, if you look on the map that I provided, 
there are several rivers, like the York, the Patuxent and 
others along the Virginia and Maryland coast that are looked at 
as being potential habitat.
    We have no evidence of shortnose sturgeon in those rivers. 
As Mr. Grumbles said, it was only 1996. It went from 1899 until 
1996 with no sturgeon known to be in the Potomac River. In 
1996, there were six sturgeon caught or found to be in the 
river. Since then, we have been involved in consultations with 
EPA.
    Mr. Radanovich. Not formal consultation but--
    Mr. Grumbles. We normally start with informal consultations 
unless we have reason to believe that formal consultations are 
necessary and we did not at that point.
    Mr. Radanovich. Did the fact that this hit the press and 
has become quite an issue now encourage the department to go 
into formal consultation?
    Mr. Grumbles. I think our discussions have reached the 
point with EPA that EPA felt that formal consultations were 
appropriate.
    Mr. Radanovich. Thank you. I turn my time over to Ms. 
Christensen.
    Ms. Christensen. Thank you, Mr. Chairman. I want to welcome 
Mr. Murphy, our Deputy Director of the National Park Service 
with whom I have had several meetings. It is also nice to have 
you here with us this morning, Tim.
    Mr. Keeney. Thank you.
    Ms. Christensen. I have a couple of questions for Interior. 
One, does the sediment discharged from the Dalecarlia and 
Georgetown water treatment facilities impact the National Park 
Service property at any point before it reaches the Potomac 
River?
    Mr. Murphy. Yes, there is a section up about 75 feet where 
the effluent crosses the National Park Service land and then it 
also affects the river bed that is the responsibility of the 
National Park Service as well.
    Ms. Christensen. So, do you have authority to stop that 
impact?
    Mr. Murphy. That is something that our solicitors started 
taking under advisement from the last hearing in October and 
the solicitor has just completed a draft review which I have 
not a chance to review myself and that draft opinion from the 
solicitor will give us a better idea as to whether or not we 
have the authority to stop it unilaterally.
    Ms. Christensen. In your view has the U.S. Fish and 
Wildlife Service, which usually is very aggressive in my 
experience, complied with statutory responsibilities in the 
sense of the sturgeon in the Potomac?
    Mr. Murphy. It is our opinion that it has. As you know, 
NMFS has the responsibility for, in this case, in the Potomac 
River. But it is our opinion, as I stated in my testimony, that 
the United States Fish and Wildlife Service has pursued this 
consistent with its authority, but as expressed earlier in my 
testimony, they feel that there certainly is an opportunity 
here for further review and for additional studies to be done 
to see what the exact effects are.
    We are working with EPA to see that that is done. As I said 
in my testimony also, the U.S. Fish and Wildlife Service would 
be happy to provide technical assistance.
    Ms. Christensen. Did they not fully comply with their 
responsibilities? Why now do they feel the need to perhaps look 
at it? Is it because of the fact of these hearings or is it 
because something was found in the science that indicates that 
they need to pursue it further?
    Mr. Murphy. I think what we are saying here is that as 
additional information becomes available, particularly when 
these permits come up for review, it gives an opportunity for 
us to take an additional look at these and as new information 
comes up and questions are asked, I think an agency 
appropriately responds by saying, well, perhaps we really need 
to take a closer look at this. I think that is what the Fish 
and Wildlife Service is doing here.
    Ms. Christensen. Mr. Grumbles, with respect to the 
recommendations, and I know you said it, I am just asking for 
clarification, the recommendations of the U.S. Fish and 
Wildlife Service that have been incorporated into the draft 
permit, the ones that has been recommended thus far. So, for 
example, even though there is no evidence of impact, they had 
recommended, for example, that it might be prudent to mitigate 
any possible impact on the shortnose sturgeon.
    I think you said in your testimony that you had 
incorporated, despite the fact that there was no real evidence 
of adverse impact on the sturgeon, that you had incorporated 
the Fish and Wildlife Service recommendations.
    Mr. Grumbles. I think that we have been in the draft and we 
are certainly not locked into concrete on that.
    Ms. Christensen. The new draft?
    Mr. Grumbles. In the draft what we have been doing is 
trying to incorporate Fish and Wildlife Service or Marine 
Fisheries Service concerns, basically the comments with respect 
to the spawning season, the ban on that. That is a specific 
example of something that we have incorporated in the draft 
permanently.
    Ms. Christensen. Well, I just wanted to establish that 
where Fish and Wildlife Service had fulfilled its 
responsibilities that were incorporated, just to clarify that.
    Back to Deputy Director Murphy, if you feel that more 
scientific evaluation on these issues should be completed, 
which agencies other than Fish and Wildlife Service should do 
that work? And is that work required by Clean Water Act or some 
other statute?
    Mr. Murphy. Let us see. The first part of your question is 
which other agencies should be involved. As I said earlier, we 
would welcome additional studies and actually would request 
that additional studies be done by EPA and by the Corps and 
that we would provide whatever technical assistance was 
necessary to facilitate those additional studies and additional 
data being collected.
    The second part of your question was? I'm sorry.
    Ms. Christensen. Would the work that you are suggesting 
might need to be done be required under Clean Water Act or some 
other statute and which statute?
    Mr. Murphy. I can't answer that directly. I would defer to 
EPA on the answer to that as far as exactly what statute it 
would be under. I can answer the question with respect to the 
National Park Service's own regulations which get at harm being 
done to the National Park Service's resources and our statutory 
responsibility to take action if we believe that harm is being 
done to our National Park Service resources.
    Under the statutes that govern the National Park Service, 
if there is data that shows that there is harm being done, of 
course we would take the appropriate action.
    Ms. Christensen. Do we have that data?
    Mr. Murphy. That is what we are asking for, and additional 
studies.
    Ms. Christensen. Perhaps, Mr. Chairman, we could ask that 
when that study is completed that the results be forwarded to 
the Subcommittee?
    Mr. Radanovich. That was done in 1998.
    Ms. Christensen. This is the study that is being done on 
the impact of the effluent on the Park Service property.
    Mr. Murphy. Well, let me provide clarification. What we are 
asking, we just made comments to the Environmental Protection 
Agency, which we just provided to the Committee. In those 
comments we ask that additional studies be done. Once those 
studies are carried out or done, which we would be happy to 
assist in and facilitate them, we could provide additional 
information. But those studies haven't been completed yet.
    We are asking, as part of our comments to EPA, that this be 
done.
    Ms. Christensen. Thank you. The next up for questions is 
Mr. Otter as soon as he makes his speech. Do you want to go 
ahead? Shall we let Tom go first?
    Mr. Osborne.
    Mr. Osborne. Thank you. Well, I will stall while Butch gets 
here.
    I appreciate your being here this morning. I would like to 
just mention to you that I have some knowledge of the 
Endangered Species Act with regard to the Platte River in 
Nebraska. The only endangered species we are required to try to 
protect is the Pallid Sturgeon and, to my knowledge, the Pallid 
Sturgeon does not inhabit the Platte River.
    This particular section over in the middle of Nebraska, I 
don't believe a Pallid Sturgeon has ever been seen there, but 
it does exist in the Missouri River, a couple of hundred miles 
downstream. So, it does seem to me that even though you may 
have not observed the shortnose sturgeon in this particular 
area that it is not without precedent that the Endangered 
Species Act is very far reaching and sometimes if it is in the 
same watershed, there is some application.
    I guess the question that I would have is simply 
irrespective of the Endangered Species Act, does the dumping of 
sludge into a river such as the Potomac, is that acceptable? I 
mean we have seen rather graphically what it has done to some 
birds and some animals. If something like this were done in the 
Yellowstone River, Yellowstone National Park, would it fly?
    Again, some of us are a little paranoid, but sort of feel 
like maybe western States are treated a little differently. It 
just doesn't make sense. I can't envision something like that 
occurring in some of our western rivers and something not being 
done rather dramatically.
    So, do you have any response to that, I mean the impact on 
birds and animals, whether this is truly being administered 
even-handedly across the board? I am just interested in your 
reaction and any one of you who would care to respond.
    Mr. Grumbles. Congressman, I would be happy to respond 
first. The response is that it is not appropriate to allow or 
to tolerate the discharge of toxic sludge into any water body. 
I think that is a general statement.
    EPA's position, and the way EPA implements the Clean Water 
Act is that we have on occasion, it is not just limited to the 
Washington Aqueduct, but there are drinking water treatment 
facilities throughout the country in various States that do 
have these residual solids, sediment.
    I wouldn't call it sludge. In my mind sludge is more 
associated with sewage sludge, which is not at all what is at 
issue here. But there are drinking water treatment facilities 
in other States throughout the country that are authorized, 
subject to conditions and limitations of various types, 
depending on the nature of the water body, to discharge the 
solids into a receiving water and do so under the parameters of 
a Clean Water Act permit.
    Now, as you point out, there can be some questions and one 
of the issues as to whether or not a permit gets issued is 
exactly what the impacts will be, not just on the water column, 
the quality of the water, but on the fish and wildlife that are 
present in the water body.
    One of the questions, I think, does boil down to, in terms 
of the intersection between the Clean Water Act and the 
Endangered Species Act, as the Chairman was raising, is getting 
a handle on what is the potential habitat of particular 
species, whether it is the Pallid Sturgeon or some other 
species that may or may not be in the receiving water. That is 
something that the permit write would have to factor in in 
consultation with NMFS and the Fish and Wildlife Service.
    It would be a significant factor in whether or not to issue 
a Clean Water Act permit.
    Mr. Keeney. Mr. Osborne, I might add a few things here. 
First of all, NOAA Fisheries, we believe, applies the ESA 
consistently wherever the species are listed. I can give you 
some examples of other places along the east coast where we 
have done that. We have taken actions to protect Atlantic 
salmon along the east coast; sea turtles in the Atlantic Ocean, 
the Gulf of Mexico and western Pacific. We are currently 
conducting Endangered Species Act status review of Atlantic 
White Marlin.
    We have also proposed designated critical habitat for Gulf 
Sturgeon in the Gulf of Mexico.
    Also, I might add that on the west coast, as you know, 
under the Endangered Species Act, endangered species may be 
taken, as long as the action of the taking is not likely to 
jeopardize the continued existence of the listed species.
    Examples where takings have been permitted on the west 
coast include spawning areas of threatened or endangered fish 
included in the Northwest Forest Plan, numerous consultations 
with the Federal Highway Administration on seismic retrofitting 
of bridges in California, Oregon and Washington, and Department 
of Army permits for in-stream mining along the Russian River.
    So, I think that even though it may appear that there is an 
unequal application of the regulatory authority, I think it is 
more of a matter of a historic legacy of development and 
industrial use, where in the East there obviously is a much 
longer history of that kind of activity. As a result, we have 
less habitat and many fewer species.
    Mr. Osborne. Thank you. I yield back, Mr. Chairman.
    Mr. Radanovich. Thank you very much.
    Mr. Udall.
    Mr. Udall of New Mexico. Thank you, Mr. Chairman. I 
appreciate members of the panel being here.
    Mr. Grumbles, back to your statement on this has been done 
before. How many times? Do you have knowledge of how many times 
the EPA has issued these NPDES permits and where you have a 
regular discharge of sediment and chlorine into a waterway? Is 
this a frequent occurrence around the country?
    Mr. Grumbles. A couple of things. One is a general response 
and then the other one is to try to get back to you with 
precise numbers because I don't have precise numbers readily 
available, but as a general matter, there are States throughout 
the country, there is not--I wouldn't say it is anywhere 
comparable to the number of wastewater treatment facilities, 
but there are numerous facilities, drinking water facilities 
where they may have some alum or they may have some residual 
levels of chlorine in the sediments or in the solids, but 
through the Clean Water Act they are discharging those 
sediments subject to conditions, constraints and requirements.
    There are only a few States. As you know, in most 
situations it is the State itself that is issuing the permits. 
There are only about five or six, about six States where EPA 
itself is the permitting authority, that issues the Clean Water 
Act permits and that is the situation here because of the 
District of Columbia. EPA is the--
    Mr. Udall of New Mexico. Your role is to oversee the 
consistency, though. You allow the States to issue the permits, 
but it is your job to make sure that they are consistent 
overall so you can't just say, you know, ``The States are doing 
it. We don't care what they do.''
    Mr. Grumbles. Oh, absolutely not. The States, in order to 
be able to issue the permits under the Clean Water Act, they 
first have to go through a process that can be fairly detailed 
and exhaustive, some might say. But it is a process where the 
State applies to the Federal EPA to receive the authority for 
the NPDES permit program. They have to go through and make a 
lot of demonstrations.
    One of the precise reasons for that is that under the Clean 
Water Act there is a need for some overall Federal consistency 
so that each State doesn't have completely different standards 
and requirements.
    Mr. Udall of New Mexico. Could you get back to us? I mean 
what I would like to know, I mean much has been made of the 
charge that the west is being treated differently than the 
east. I mean, I would really like to know. Comparing this 
permit and the amount of discharge in terms of the sediment, 
the volume of sediment, the chlorine, the alum that is in it, 
are there comparable situations around the country and where 
are they?
    Not just saying there are some discharge; I am talking 
about what are the comparisons?
    Mr. Grumbles. There are some specific facilities such as in 
Nebraska and some of the other States that are discharging 
either on an intermittent or a continuous basis some solids 
from the drinking water treatment process.
    I would say, and I know the Chairman recognizes this, 
because of this particular facility, as Dom Izzo has pointed 
out, it is truly unique in the sense that there is no other 
facility like it in the Nation in one respect in that it dates 
back, I guess, dates back to the mid-1800's.
    It has a Federal agency running it and it has excess 
capacity in terms of the sedimentation basins which leads to a 
more, as a natural process in terms of the operation of the 
facility, it means you are going to have intermittent 
discharges as opposed to continuous discharges.
    So, there are some nuances with respect to this particular 
facility, but our basic point is that this is not a one-of-a-
kind permit. There are other permits throughout the country 
that do authorize, with safeguards to minimize any potential 
toxic contaminants within those sediments that authorize the 
discharge of sediments from a drinking water treatment plant 
into a water body.
    Mr. Udall of New Mexico. And one of the toxics is chlorine 
itself. It is a biocide. It kills everything at certain levels.
    Mr. Grumbles. Chlorine, and I would defer to Dom on this. I 
can just say that one of the specific components in the draft 
permit is the requirement to test for detectable levels of 
chlorine, because chlorine, as you know, is used at various 
drinking water facilities as a disinfectant, chlorine or 
chloramine.
    So, if processed water is used to flush out the sediment 
basins, there may be situations where there are detectable 
levels of chlorine or chloramine in the discharge.
    Mr. Udall of New Mexico. OK. That is it.
    Mr. Izzo. As far as the chlorine goes, based on the 
monitoring we have done and the information that is available, 
it is completely neutralized by the time it gets into the 
river. Essentially, what we are using it for is when the basins 
have been emptied they have to be flushed to get that last 
layer of sediment out of there. They just use the water that is 
available.
    The combination of the water mixing with the air, which 
causes a certain amount of the chlorine to vaporize, and the 
chlorine interacting with the sediment causes it to be 
neutralized before it gets into the environment. So, we do not 
believe that that is a problem.
    Mr. Udall of New Mexico. Well, the Chairman mentioned in 
his statement and I'm talking about Chairman Hansen, not 
Chairman Radanovich, fishermen and police officers complained 
about heavy amounts of chlorine in the discharges. So, you are 
saying that doesn't occur?
    Mr. Izzo. If it has occurred in the past, it has been of an 
intermittent nature and it is basically an accident. The 
information we have is that it is not occurring.
    Mr. Udall of New Mexico. Have any of you received any 
commitments from Park Police officers that there have been 
major discharges of chlorine into the river?
    Mr. Izzo. We have not.
    Mr. Grumbles. Congressman, I think one of the points, I 
have no doubt that some of the people who live and recreate in 
the area have, as I have just read in the papers, some have 
expressed some concerns about the quantity of the water in the 
Potomac River.
    I think one of the points that EPA's perspective is is that 
this draft permit, as we go through the comment period, is an 
opportunity to respond to concerns based on the scientific 
analysis and also we view it in its current form as an 
improvement that will result in increased protections by 
increasing from 50 percent to 85 percent the amount of 
sediments that need to be removed from the discharge and also 
begin the process and aggressively pursue the process of more 
studies on some of the remaining issues and questions that some 
in the public are raising.
    Mr. Udall of New Mexico. Thank you, Mr. Chairman.
    Mr. Radanovich. Thank you, Mr. Udall.
    Before I allow the others to speak, I do want to make 
reference to a couple of things. On the issue of the nature of 
this particular dumping, to my knowledge other water agencies 
and other rivers are allowed to meter back sludge that is taken 
out from the river because a lot of this is sediment that was 
originally pulled from the river.
    The issue is in other agencies, and what sets this one 
apart, is that they are required to meter them in more slowly, 
not to push them out into the river in higher concentrations 
than are normally allowed. This is probably an issue where this 
type of dumping doesn't occur and this high concentration on 
river volume, as many as others do.
    But I would like to, if I can, before I go on to the 
others, to kind of steer this questioning a little bit 
differently and that is on the issue of whether or not this is 
environmental acceptable or not.
    I want to refer to a couple of things. One is that in the 
discussion that was had about whether the dumping was going to 
be occurring during the spawning season of the shortnose 
sturgeon or precautions were being taken care of that the 
dumping was occurring to protect the endangered species 
according to a 1998 fisheries panel study that recommended 
that.
    However, their first recommendation was to stop this 
dumping altogether, which was ignored. Then their second 
recommendation was, if you were going to be doing this dumping, 
then you ought not to be doing it during the time of the 
spawning of the endangered species.
    The second thing I will refer to is the June 18 letter from 
Craig Manson who is the Assistant Secretary for Fish and 
Wildlife and Parks that states in his letter to the Water 
Protection Division of the EPA, states, ``The Department of EPA 
believes that the sediment discharges should ultimately be 
eliminated. The department also has concerns respecting the 
adequacy of the science underlying the EPA's draft NPDES 
permit.''
    Coming from the Department of Interior, which I appreciate, 
those who are custodians of national parks should be on the 
side of eliminating the discharges altogether.
    I know that there was discussion of the ultimate solution 
of this thing which has been on the board for many, many years 
and that is a treatment facility that would treat the sludge 
and the byproduct then would be hauled out in dump trucks to a 
landfill somewhere. This is the ultimate resolution for this 
environmental problem.
    I want to encourage some discussion. I am going to give 
time to the remaining people. But that is why it has been 25 
years that we have known that a facility was required that 
would treat the facility and haul it out through D.C. 
neighborhoods and we are still discussing whether dumping all 
this sludge in the Potomac is good or bad and should be allowed 
to continue.
    With that I want to yield to Mr. Rehberg who will have some 
questions.
    Mr. Rehberg. Thank you, Mr. Chairman. I was afraid you 
wouldn't see me among all my colleagues down here.
    This being my first opportunity to address this issue, 
might I beg the indulgence of the Committee to submit for the 
record an opening statement and I will dispense with reading. I 
would like the opportunity to have that in the official record.
    [The prepared statement of Mr. Rehberg follows:]

   Statement of The Honorable Dennis R. Rehberg, a Representative in 
                   Congress from the State of Montana

    Mr. Chairman, thank you for holding this oversight hearing on an 
issue that highlights the alarming inconsistency in the enforcement 
practices of the Endangered Species Act.
    Mr. Chairman, it is time for this Congress to end the East vs. West 
hypocrisy of the Endangered Species Act.
    It's well past time we demand consistent application of the ESA--
from the eastern shores and marsh lands, to the vast plains stretching 
across middle America to the ocean lined cliffs of the West. The same 
law that has continuously affected projects throughout the rural West, 
halting progress, and derailing hundreds if not thousands of 
enterprises out of business appears to be simply tossed aside when it's 
enforcement does not suit those along the urban corridors of the East.
    Despite potential endangered species implications, the expansion 
project for the Woodrow Wilson bridge continues, as does the sludge 
dumping that is the topic of today's hearing. Why should one species or 
project warrant less scrutiny simply because of its zip code?
    Mr. Chairman, these inconsistencies highlight the double standard 
that is repeated over and over again when well-funded East Coast 
environmental lobbying organizations file lawsuits, crushing economic 
advancement throughout the rural West, as in the case of the Klamath 
Basin in Oregon and the forests of the Pacific Northwest.
    When it comes to ESA enforcement thousands of miles away, these 
lobbying groups are ready with a lawsuit in one hand a muckraking media 
campaign in the other. However, threaten these so called stewards of 
the land with trucks carrying sludge through their upscale 
neighborhoods or the possibility of adding 15 minutes to their daily 
commutes because the bridge is backed up and--wait'the spawning ground 
for an endangered species suddenly becomes less worthy of protection.
    Clearly this is ``selective enforcement'' of the Endangered Species 
Act, right here in the backyard of the Capitol.
    Why? Well with the Corps' practice of sludge dumping, any other 
option for discharging this toxic material would include transporting 
it from the Washington Aqueduct to an alternate location. But to do 
that, transport vehicles would follow a route through some of the 
priciest real estate in the area--Georgetown. Of course the folks who 
live in Georgetown haven't exactly been receptive to this idea. But 
that shouldn't be justification for not enforcing the Endangered 
Species Act--folks in Montana aren't given the choice to be receptive 
to an ESA concern or not. The file a lawsuit, shut down a project and 
ask questions later approach of the East Coast environmental groups 
doesn't allow for that.
    The overreaching effects of the ESA affect Montanans, and many 
Westerners, on a daily basis. Foresters are precluded from harvesting 
timber because of possible implications on an endangered or threatened 
species, ranchers fear for their herds because of wolf populations 
increased by reintroduction, and small businesses must be aware of the 
umbrella of ESA regulations and policies or risk legal action. These 
are just a few of the examples available. Yesterday we heard from my 
good friend from California as he regaled us with unbelievable stories 
of inconsistent EPA enforcement. But apparently, these overreaches only 
apply out West. At least the examples set by Federal agencies, right 
here in the Nation's Capitol, illustrate that the ESA doesn't apply 
here.
    Today's hearing focuses on the Army Corps of Engineers' traditional 
practice of dumping toxic sludge into the Potomac River, in a National 
Park, and onto the spawning ground of the shortnose sturgeon--an 
endangered species. Are the National Marine Fisheries Service and the 
Fish and Wildlife Service asleep at the switch? The Environmental 
Protection Agency is in the process of re-issuing the Corps' permit to 
dump toxic sludge into the spawning ground of an endangered species. 
How can this be? This would never fly out west, nor should this 
Congress allow the Endangered Species Act to continue to be enforced in 
an inconsistent and haphazard patchwork manner across the country. Your 
zip code, no matter how wealthy, should have no bearing on the 
enforcement of Federal law.
    I hope that by bringing these issues to national attention we will 
enlighten the public that some in this zip code clearly believe 
environmental laws are too good for some folks. Regardless of how 
anyone feels about the ESA, the law must be applied in a consistent 
manner across the country.
    Mr. Chairman, I thank you, and Subcommittee Chairman Radanovich for 
your efforts to uncover and correct these inconsistencies.
                                 ______
                                 
    Mr. Rehberg. Mr. Grumbles, is it usual for the EPA to allow 
permits to be either continued or considered with incomplete 
data? I guess I wasn't aware of that. Maybe you could refresh 
my memory a little bit about the permitting process under both 
Clean Water and the Endangered Species Act and your ability to 
have the flexibility to decide in this particular case, we are 
going to let them go ahead and keep doing it until we determine 
whether there is both a health risk and a fish and wildlife 
risk.
    Mr. Grumbles. That is a fair question. I think a couple of 
things. One is, when EPA or as is most likely the case, 
Congressman, a State issues a Clean Water Act permit, and as I 
said I have 44 or 45 States, 44 States that are the ones 
actually issuing the permits, not EPA.
    But in the situation of issuing a permit, it is frequent 
that some of the limitations and conditions that are included 
in the permit are met to foster additional monitoring and 
gathering of information on potential issues. I think that the 
concept of a permit is that it needs in some sense to be 
reflecting adaptive management in an iterative process and that 
when the permit comes up for renewal or expires at 5 years, 
that will be a period of time when you have additional 
information to respond to that new information or if, under 
certain circumstances this new information comes in and is made 
aware to folks before that 5-year expiration, then there may be 
a need for a modification tool.
    Mr. Rehberg. Is that same flexibility afforded the private 
sector? I will use as an example the sugar factory in Billings, 
Montana. Would they have that same opportunity?
    Mr. Grumbles. My understanding is yes, they would. There is 
no distinction between governmental and non-governmental 
entities in terms of that.
    Mr. Rehberg. Then let me ask you my follow-up question, and 
that is, in the case of the sugar factory in Billings, Montana, 
for a period of 10 minutes 1 year, they allowed, through a 
mechanical error, a discharge of sugar into a drain ditch. They 
were assessed a penalty of $100,000.
    What kind of penalties are you assessing against the 
municipalities that are dumping highly chlorinated water maybe 
once every couple of years?
    Mr. Grumbles. A couple of things, in terms of the Clean 
Water Act, the authorities--and this gets into an enforcement 
type of question--in most permits, whether it is a municipal 
discharger or an industrial or private sector discharger, there 
are situations, fairly prescribed situations, where they are 
able to avail themselves of a bypass or an upset defense if 
they can point to certain circumstances, act of God or some 
circumstance where there is a likelihood of substantial damage 
to persons or property.
    They have a defense where a limited discharge can occur 
without creating liability, as long as they report the 
discharge in advance.
    Mr. Rehberg. Can you give me an example then of a situation 
where this municipality has been fined?
    Mr. Grumbles. This municipality being--
    Mr. Rehberg. The aqueduct, the C&O and the sludge?
    Mr. Grumbles. Well, that is a good question. This is a 
unique situation where it is really not the municipality that 
would be fined. It is the Army Corps of Engineers which is out 
of the Baltimore District. It runs and operates and controls 
the Washington Aqueduct.
    I know that there have been Safe Drinking Water Act 
violations in the past, perhaps not at the facility itself, but 
within the distribution system where fines have been imposed.
    I would be happy, Congressman, to provide you more 
information for the record on that.
    Mr. Rehberg. OK. One last question for you, and that is Mr. 
Keeney mentioned the fact, and I will have you respond to his 
statement that the inconsistency that probably exists that we 
allude to, the west versus the east or urban versus rural, is 
that you have already destroyed your habitat in the east and 
you are trying to keep us from doing that.
    Does the Endangered Species Act or the Clean Water Act 
allow the flexibility of making a determination that you are 
going to protect us from ourselves, but it is OK for you not to 
go back to what you were as a rural area in the 1800's?
    That is a serious question. You see, I wasn't aware that 
the laws, both the Endangered Species and the Clean Water Act 
allowed you the opportunity to make a determination that 
because, as Mr. Keeney mentioned, you were something back in 
the 1800's but you are not now.
    In Mr. Osborne's case they are moving into Nebraska and 
making a determination that they are potential habitats, so 
they become critical habitat for the re-establishment of 
something that was never there, but it is not OK in the east to 
say, ``We have proof in 1899 that there was a sturgeon in your 
river and we are going to make you go back to what you were--I 
didn't realize you were a different Zip Code or a different 
financial situation.''
    I just don't understand the inconsistency of the 
application of those two laws, the Clean Water Act and the 
Endangered Species Act.
    Mr. Grumbles. I guess what I would ask to do is, one, be 
able to mention that when it is brought to the attention of 
Administrator Whitman. She clearly has concerns about any 
allegations made about the unequal application of the Clean 
Water Act.
    We are not aware of situations where there is unequal 
application. We can try to provide more information about 
violations in various States geographically, but it is really, 
in terms of the implementation of the Act and enforcement of 
the Act.
    Mr. Rehberg. Well, we would feel better if we saw some 
financial penalties against the Corps of Engineers if they are 
in fact violating. We will bring that up later. I am sure the 
Corps would just as soon not be fined.
    Mr. Murphy, in your testimony you talked a lot about 
additional studies. Are you allowed as a National Park Service 
to accept, and do you consider scientific studies by outside 
peer groups? All of your testimony referred to additional 
studies within the Federal Government system.
    Mr. Murphy. Right.
    Mr. Rehberg. But there are certainly a lot of scientists 
that exist outside of government. Are you able under your 
authority to consider peer scientific studies that will and can 
prove that there is an impact on your park?
    Mr. Murphy. The short answer is yes. We have contracted for 
an outside firm, a private firm, to do studies on our behalf. 
The reference in my testimony was to those that have the 
jurisdiction for doing the studies, in this case the EPA and 
the Corps of Engineers.
    Mr. Rehberg. How about if you didn't contract out, if I 
were to establish a relationship with a scientific community 
that could prove to you that that does exist? Would you as a 
National Park Service accept that as factual?
    Mr. Murphy. Well, there are certain instances where if 
someone comes to us and presents scientific data and 
information and we verify that that is the case, I mean, 
absolutely, we would take some sort of action if that 
information was verifiable and it showed that there was harm 
taking place to park resources. The answer is yes.
    Mr. Otter [presiding]. Pardon me, Mr. Rehberg, I know you 
are not colorblind. That red light has been on now for quite a 
while.
    Mr. Rehberg. Oh, I am sorry. It is behind this young lady 
and I didn't see it.
    Mr. Otter. We are going to have another round, Mr. Rehberg, 
if you want that.
    Mr. Rehberg. I just wanted to ask one last quick question, 
if I could, mainly because I have to go. That is public input, 
Mr. Murphy, are you accepting put input as you do on some of 
the other land resource issues in national parks?
    Mr. Murphy. Do you mean on this particular--
    Mr. Rehberg. On this particular issue. If I were to make a 
plea through the media for public input on whether you ought to 
continue dumping sludge into the Potomac, chances are 100 
percent of the people are going to say no. Are you accepting 
that public input?
    Mr. Murphy. We certainly listen to public input and take 
action based upon public input. There are instances where we 
call for public hearings on particular instances. The answer to 
that is yes.
    Mr. Rehberg. Thank you, Mr. Chairman. I apologize for going 
over my allotted time.
    Mr. Rehberg. [Presiding] Well, you know we indulge you, you 
know, Mr. Rehberg.
    Mr. Rehberg. Well, Mr. Otter doesn't.
    Mr. Rehberg. Mr. Otter.
    Mr. Otter. I thank you for coming back, Mr. Chairman, and 
getting this Committee back in shape, including Mr. Rehberg.

  STATEMENT OF HON. BUTCH OTTER, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF IDAHO

    Mr. Otter. I think we have maybe stumbled onto the problem 
that we have. You know, yesterday when we began the hearing 
relative to the Endangered Species Act as a whole, one of my 
colleagues mentioned that it would be interesting to look 200 
years down the road and see how successful we were and how many 
species we had actually lost.
    I think part of the problem is that we do have, indeed, at 
least, a species in the form of a philosophy present here yet 
today that we thought we had gotten rid of 200 years ago. It 
was called King George III and government by men instead of by 
laws.
    Part of the problem I see, I think, in responding to 
questions, Mr. Grumbles, you said earlier that there was like a 
request for an 85 percent reduction of the pollutants in the 
water. Is that right?
    Mr. Grumbles. Eighty-five percent reduction of the sediment 
load.
    Mr. Otter. Is that the normal way you reflect on those? You 
have to reduce it 20 percent, 30 percent, 40 percent?
    Mr. Grumbles. It is based on large part on the traditional 
approach under the Clean Water Act, particularly where you have 
an intermittent discharge as opposed to a continuous one. You 
look first for a technology base control--
    Mr. Otter. But my question here goes to the percentage. 
That is how we measure success or failure, did we reduce it 85 
percent? Did we reduce it 10 percent? Is that right?
    Mr. Grumbles. That number is based on the secondary 
treatment provisions in the Clean Water Act.
    Mr. Otter. In response to a question earlier, Mr. Keeney 
said part of the problem was that the east had a history of 
polluting and more industrial sites, I guess, and that sort of 
thing. And we haven't out west.
    In some of the traditional and historic uses that you were 
mentioning on the C&O Canal, on the resulting pollutants that 
are then--we don't call them pollutants; we call them sludge--
what do you call them?
    Mr. Grumbles. Sediments.
    Mr. Otter. But, you know, we shut down 32 lumber mills in 
my district in the last 9 years. We have idled 12,000 miners, 
all because of the Clean Water Act and the activity on the 
watershed could have caused a problem in the contiguous or in 
the contributing streams to the Salmon River and the Snake 
River and subsequently the habitats.
    Some of those were built in the 1920's. Now, technology has 
improved them. But they are still shut down and the thing is so 
are the jobs and so are the families and unfortunately, so are 
the communities. That is the problem that we have.
    Now, getting back to Mr. Keeney, if you ask for a 50 
percent reduction in the pollutants that are present in a 
stream in the east, as opposed to a stream in the west, as you 
well know, you know, if you take 50 percent of the pollutants 
out of something that is highly polluted, it is pretty easy to 
get a 50 percent reduction.
    But of something that is running fairly clean and has not 
been violated to the extent and you ask for a 50 percent 
reduction in that, getting that last 50 percent out of a stream 
that is already fairly clean is much more expensive and limits 
the activities to a much greater degree. Is that not so?
    Mr. Grumbles. This came up a bit last week when we were 
talking about trading and watershed based approaches in a 
different Committee.
    Mr. Otter. Right. I am on that Committee.
    Mr. Grumbles. The point is well taken in the sense of 
fundamentally, the Clean Water Act, whether it is municipal or 
industrial discharges, it requires EPA or the States to apply a 
two-part approach to permitting. The first part is a 
technology-based control and that is where you get into the 
percentages, the percentage removals.
    The second part, and the part that EPA is very much focused 
on, we believe the more you talk about watershed-based holistic 
approaches and looking at the actual health of a watershed, you 
have to get to this second part and really focus in on it and 
that is the water quality-based approach that says, well, above 
and beyond or in addition to whatever technology-based 
controls, what do the fish require? What does the water column 
need? What do the water fowl require?
    That is where you get into some additional provisions. I 
think the draft permit for the Washington Aqueduct tries to do 
that as well by requiring additional monitoring and studies on 
the actual impacts.
    We are supportive of additional studies with the National 
Park Service on the potential impacts on the fisheries or a 
smothering effect, looking at the actual water column, going 
beyond the percentage removal. Because as you get into a 
watershed, whether it is east coast or west coast, you have to 
do more than just apply the baseline percentage reduction that 
is a technology-based control.
    So, we are supportive very much of looking beyond just a 
baseline approach.
    Mr. Otter. Well, I am just a farm boy from Idaho. I live 
very close and I run up and down the Potomac all the time when 
I jog. I also run up and down the Boise River and the Salmon 
River when I am home and the Snake River and the Clearwater.
    I will guarantee you, we have nothing, I mean I have never 
seen a river catch fire like the Potomac did one time, I am 
told, in Idaho. I just am unable to, I guess, get to the 
question of how come it seems so unequal.
    How many companies have you shut down east of the 
Mississippi River on the watershed? How many lumber mills have 
you lost? How many miners have you shut down? How many coal 
mines have you shut down in Virginia?
    I guess my time is up.
    Mr. Rehberg. Keep going.
    Mr. Otter. Thank you, Mr. Rehberg. I appreciate that.
    I am not going to ask for a response to that because I 
guess we are going to get another round.
    But, Mr. Chairman, I would ask unanimous consent that the 
report referred to in earlier testimony that was the result of 
the headline in this morning's Washington Times, and I am not 
suggesting that you read the Washington Times, but for that 
report. I would like to have that submitted for the record.
    Mr. Radanovich. Is there any objection? It is so ordered.

    [The newspaper article referred to follows:] 
    [GRAPHIC] [TIFF OMITTED] T0271.001
    
    Mr. Otter. Thank you.
    Mr. Grumbles. Mr. Chairman, if you do get a copy of the 
report, we would like to see it, too, because it is very 
unclear as to exactly what that article is referring to, as 
well as the allegations that somebody is making in terms of a 
former employee.
    We are very seriously looking into whether or not there is 
any basis of fact in the relevance of the discussions in that 
article. So, I appreciate that.
    Mr. Otter. I would also like to ask unanimous consent, 
then, should we continue with this investigatory process, that 
we have those former employees come and testify before this 
panel.
    Mr. Radanovich. I have no problem with that. If there is no 
objection, it is so ordered.
    Mr. Grumbles. Just for the point, this was an ex-permit 
writer by the name of William Colley. I think his name was 
mentioned in recent press articles. For the benefit of the EPA, 
that is who it is.
    Mr. Radanovich. Thank you, Mr. Otter.
    I still can't understand why in all of this discussion 
about dumping the sediment into the Potomac River, again, this 
is onto the spawning grounds of the expected habitat of 
endangered species into a Heritage River, through a National 
Park, why nobody is in that panel, except for what was brought 
to light recently from the Department of Interior, why aren't 
people saying that we shouldn't be doing this; that we should 
be doing and working toward what was recommended many, many 
years ago and that is the construction of a treatment facility 
that would prevent the dumping of this sludge into the Potomac.
    I can't for the life of me find out why agencies such an 
NMFS or EPA is justifying this without precluding it by saying 
this shouldn't be happening, the best solution is a treatment 
facility. Why hasn't that happened over the last few years?
    There was evidence in an Army Corps of Engineers report 
that a treatment facility would result in a byproduct that 
would have to be hauled out into neighborhoods with dump trucks 
and they were affluent neighborhoods and therefore it was not 
recommended.
    I would like to get the response either from you, Dominic, 
or you, Ben, on why has it been 20 years that the ultimate 
solution for this thing hasn't even really been worked toward?
    Mr. Grumbles. Mr. Chairman, it is not our view that the 
draft permit in its current form precludes a solids recovery 
facility.
    Mr. Radanovich. Why didn't you call for it? That is my 
question. I mean you didn't preclude it, but why didn't you 
call for it?
    Mr. Grumbles. To my knowledge, based on the information 
that has been gathered over the years and certainly the public 
comment period and the views not only of the customers who 
actually would be paying for the facility--
    Mr. Radanovich. God forbid that that would happen inside 
this Beltway.
    Mr. Grumbles. Well, our job at EPA is to issue a permit 
that is protective of the environment. That is the most 
important factor.
    Mr. Radanovich. So, is it your statement then that dumping 
the sludge or the byproduct, if you want to call it that, or 
the sediment into the Potomac is a better solution than 
building a facility?
    Mr. Grumbles. Our position on it is that the best way to 
percent is to be cautious, to learn more in terms of the 
scientific--that the facts scientifically what is the impact, 
not just the shortnose sturgeon, but any other potential 
adverse impacts on fisheries in the river and that it is an 
entirely legitimate and cautious approach to require 85 percent 
removal of the solids where we would be requiring the 
permittees to also be developing a plan to implement that.
    Our view is that could lead to a solids recovery facility, 
but that right now if you get into looking at the environmental 
benefits of such a facility, we are not sure yet, we are not 
there to say we have to mandate from the top down a requirement 
that this $60 or $70 million be built.
    Mr. Radanovich. Mr. Grumbles, you do mention that 51 
percent in sediment reduction, which I think you should be 
applauded for that, but the fact of the matter is that you are 
still filling sedimentation ponds and still requiring that 
sludge to be dumped out into the Potomac on to the spawning 
grounds of an endangered species, and you hearing known this 
for 25 years.
    Now you are saying maybe we need to relook at the dumping 
of the sludge into the Potomac and there is evidence there that 
for the first time in 25 years you are going into formal 
consultations with one of the agencies that have the oversight 
over the enforcement of the Endangered Species Act. This 
doesn't wash. I mean it doesn't wash.
    Why has it been 20 to 25 years and no movement on a water 
treatment facility that has been known has been needed and was 
the top recommendation at least in a 1998 study, if not before, 
that that was the best way to handle this problem.
    Mr. Grumbles. I think two aspects jump out. One, the 
legitimate scientific debate over whether it is a spawning 
ground for the shortnose sturgeon; and two, the ongoing debate, 
particularly in the 1996 Safe Drinking Water Amendments where 
there was a tremendous amount of Congressional concern and 
jurisdictional concern among the jurisdictions, the wholesale 
customers about the mandated establishment of that facility.
    EPA was listening and has been implementing the provisions 
of the '96 Act and one of the clear messages that was from that 
debate was that it would not be advisable; it could be 
premature and unjustifiably costly to mandate the construction 
of that type of facility at this time.
    What we are saying now is that the jury is still out on 
what is the best way to proceed is. The jury is not still out 
on the need to reduce the overall sediment load. We are going 
to be in more consultation. We will be getting more public 
comments on additional ways to reduce the discharge and 
continue looking at--
    Mr. Radanovich. Mr. Grumbles, please excuse me. I have a 
Medicare Commerce vote. That is why I am slipping out, running 
through the rain, to get to the votes.
    Mr. Otter, would you take it over for me. Please forgive me 
and I will be back, if you don't mind.
    Mr. Otter [presiding]. Had you completed the answer to that 
question?
    Mr. Grumbles. I believe so. I think so.
    Mr. Otter. Mr. Udall.
    Mr. Udall of New Mexico. Thank you. I wanted to explore 
with the Corps a little bit about whether the Corps complies 
with every aspect of the current NPDES permit. The majority 
memo prepared for the Subcommittee hearing alleges two 
violations of the existing permit. The first is that the Corps 
is required to record the temperature of the discharges and at 
times fails to do so.
    The second allegation is that the Corps have violated the 
permit at times and has failed to notify the EPA as required by 
the permit.
    What is the situation on both of those allegations, 
Dominic.
    Mr. Izzo. Well, sir, we believe we are in full compliance 
with the permits and that any reported instances are fully 
investigated and corrective action is taken. If that is not the 
case, if it is brought to our attention we will certainly 
correct it immediately. But based on all the information that 
is available, we are in compliance and we have responded 
appropriately when any potential violations have been brought 
to our attention.
    Mr. Udall of New Mexico. So, you don't know of any time 
where you have failed to record the temperature or the 
discharge?
    Mr. Izzo. Sir, I do not.
    Mr. Udall of New Mexico. Has there been any violation of 
the permit that you have failed to report to the EPA that you 
know of?
    Mr. Izzo. Not that I can comment on. If you would like us 
to provide a statement, we can go back and review the records 
and provide any. This is obviously a day-to-day operation where 
there may be violations over a period of several years. You are 
bound to have mistakes made. If there are, they will be in the 
records and we will be happy to provide that information to 
you.
    Mr. Udall of New Mexico. But you don't have any knowledge 
of any specific one at this point?
    Mr. Izzo. No, sir, I do not. I do not believe there are any 
significant violations, in other words, any violations that 
would not normally occur in a process plant of this types where 
things occasionally happen.
    Mr. Udall of New Mexico. Mr. Grumbles, the aqueduct is 
operating under a 5-year NPDES permit issued in 1989. Why was 
it that a new permit was not issued in a 5-year period? That 
would be 1995.
    Mr. Grumbles. Congressman, a couple of reasons, I believe. 
One is just like a lot of other facilities throughout the 
country, there is a serious backlog of Clean Water Act, NPDES 
permits. The way the Act operates is that the permit cannot, by 
law, be for more than a 5-year period.
    As well as the discharger provides notice 180 days in 
advance of that expiration date to the regulatory body, which 
is usually a State, not EPA, they are able to continue to on 
the under their expired permit. That is the situation where it 
is well over 20 percent of the dischargers throughout the 
country are operating under expired permits.
    It is a high priority of the agency to try to reduce that 
backlog. I would say that the Washington Aqueduct, like so many 
other facilities across the country, has that. Because of the 
increasing complexity and resources requirements in terms of 
re-issuing permits, there is a backlog.
    The other point, an important one, that relates 
specifically to the Washington Aqueduct is that in the early 
'90's and mid-90's, after the permit expired there was a 
vigorous debate within Congress as well as within the 
jurisdictions as to just exactly what the future of the 
Washington Aqueduct would be in terms of the ownership, 
control, operation.
    The Safe Drinking Water Act Amendments of '96 specifically 
contemplated that there would be studies and consultation with 
the customers, the wholesale customers and others as to what 
the entity should be, whether it should be transferred from the 
Corps of Engineers.
    In that type of a setting where there was uncertainty as to 
what the makeup and the design and jurisdictional operation of 
the facility would be, that that contributed to a ``delay'' in 
terms of re-issuing the permit.
    Mr. Udall of New Mexico. This is for any of the panelists. 
Have any of you had any complaints about negative impacts on 
the fish from anyone as far as the fishermen or anybody else on 
the discharge into the river?
    Mr. Murphy. We have had some complaints. I don't know what 
the level of those complaints. Our superintendent of the park 
is here and our park rangers, of course, patrol that area. So, 
there have been some complaints and there was at least one 
police complaint filed in answer to your earlier question about 
the chlorine and the smell of the chlorine that was probably 
referred to in Chairman Hansen's opening remarks.
    Mr. Udall of New Mexico. Can you tell me a little bit more 
about that Park Police complaint?
    Mr. Murphy. I don't have personally the details. If you 
would like, I could have our part superintendent come up and 
talk to you about that. But I don't have direct knowledge. As 
the Deputy Director, of course, I wouldn't get that specific of 
information on a particular park.
    Mr. Udall of New Mexico. OK. Have any of you heard of 
complaints from people who are recreating on the river about 
the smell? Have they brought that up? Have any of you been 
there? Is the discharge particularly smelly?
    Mr. Murphy. I haven't been there, but there certainly have 
been complaints and those have been brought to our attention, 
that there are those complaints from recreators.
    Mr. Udall of New Mexico. Thank you, Mr. Chairman.
    Mr. Otter. Thank you, Mr. Udall.
    There are a couple of things that I would like to try to 
clear up here prior to recognizing Mr. Rehberg again.
    One, how can an agency like the Army Corps of Engineers be 
in violation of a permit if they have not had a permit from 
1994 until March of this year? If there is no permit, how can 
they be in violation of it?
    Mr. Grumbles. Congressman, I believe they have had a permit 
prior to--did you say 1994 or what?
    Mr. Otter. 1994. The record shows that they operated 
without a permit. You said 5 years. The permit ran out between 
1989 and 1994 and they operated and continued that process for 
8 years. Now is that normal, the EPA allows folks to continue 
for 8 years? Can you cite me examples of that?
    Mr. Grumbles. I was trying to--I didn't do a very good job 
at it, but I was trying to explain to Congressman Udall that 
the way the Clean Water Act is written and implemented and 
through EPA regulations, whether it is a municipality or an 
industry, west or east coast entity, that if they submit 180 
days before the permit expires, if they submit notice to the 
regulatory body, which is either EPA or the State, then by 
regulation under the Clean Water Act they are able to continue 
to operate under that expired permit.
    Mr. Otter. For 8 years?
    Mr. Grumbles. Well, until it gets re-issued.
    Mr. Otter. Do most of them take 8 years?
    Mr. Grumbles. I don't know what the exact timeframe is, but 
it can be a longer time period than we would want to admit in 
terms of the amount of resources. Again, it is mostly the State 
permitting entity, not EPA. But because of the resources, 
personnel and technical issues, and Clean Water Act permits are 
getting more complex, it can take several years.
    Whether eight is the arithmetic mean or the average, I 
don't know. But based on all the work that is required and the 
technical expertise in re-issuing a permit, there are permits 
that are expired. When they are expired, the provisions still 
control.
    They are not operating without any kind of a permit. It is 
just that they are operating under the expired permit. It is 
administratively continued. So, there are still requirements. 
They can still be in violation and still be subject to the 
Clean Water Act. It is just that they are not operating under a 
new permit. It is an administratively continued permit that was 
expired and they provided notice to the regulatory body.
    Mr. Otter. I am still not sure what the process is, but I 
guess we will get into that later.
    I will recognize Mr. Rehberg now.
    Mr. Rehberg. Thank you, Mr. Chairman. I will read the 
testimony with renewed interest. This answer is probably in 
there, Mr. Grumbles, but what is your drop dead date? When will 
this permit and all of the review and studies and 
determinations and input from various Federal and private 
entities be done?
    Mr. Grumbles. The drop dead date is a fluid one in the 
sense of what we need to do, now that we are in formal 
consultation with National Marine and Fishery Service, I can't 
give you, Congressman, a drop dead date on it.
    Mr. Rehberg. Our lifetime.
    Mr. Grumbles. I hesitate to answer that. Based on the time 
period we have got, the comment period closes June 28th. We 
will be reviewing the public comments and I am sure they will 
be significant and numerous ones that we will be reviewing.
    We also have, I think, the clock under the Endangered 
Species Act regulations is 135 days from the date in which we 
enter into formal consultation. So, 135 days from June 13th, 
that will be a significant timeframe.
    My sense is that we will be trying the best we can to issue 
a permit, because we believe a permit is an opportunity to have 
increased safeguards, sometime before the end of the year. I 
hesitate because it depends on how much additional information, 
how many additional studies that we do with the National Park 
Service or others.
    Mr. Rehberg. It was mentioned that Nebraska is another 
State that has some of these same kinds of discharge problems. 
I hesitate to even ask this question, but how many States or 
how many municipalities can you estimate are in the same 
situation where they may be violating the nation's Clean Water 
laws and they are either under a permit that is allowing them 
to do it or the continuation of a temporary permit that for God 
knows how long, may last forever.
    Mr. Grumbles. We don't believe there is a violation of the 
Clean Water Act in this situation with the Washington Aqueduct 
based on all the information we have right now. The process of 
continuing to discharge during an expired permit is one, as I 
was mentioning, it is a common phenomenon now where the States 
primarily, but also EPA as the entity that writes and issues 
the permit, has a significant backlog. It is over 20 percent of 
the existing permits that are out there that are 
administratively continued permits.
    Mr. Rehberg. Do you have any idea of the number? Twenty 
percent of 10,000?
    Mr. Grumbles. It is more than 10,000. I will definitely 
provide to the Committee for the record the list and the 
numbers of the expired permits that we have out there. It goes 
by region, throughout the ten regions. Just with respect to 
publicly owned treatment works, there are about 16,000 
facilities that have permits. There are well over 70,000, over 
100,000.
    It depends if you count municipal storm water permits as 
well. But there can be over 100,000 other permitted entities. 
About 20 percent of those, and that is just a rough estimate 
right here, but I will provide you more information, 20 percent 
of those have administratively continued permits.
    Mr. Rehberg. Let me just make sure I understand this 
correctly. You currently have a public comment period open now 
and that will close on the 28th and that is for the National 
Park Service's portion as well? The comments go to you. They go 
to the Park Service. They go to the Corps of Engineers, too?
    Mr. Grumbles. They go to the EPA, EPA Region 3 is the 
entity that is tasked with issuing the permit. So, they will 
get the comments. We will continue to engage in a formal 
consultation with the National Marine Fishery Service.
    We will also obviously continue to be working with other 
Federal agencies on this.
    Mr. Rehberg. Mr. Murphy, have you received any complaints 
from any of your employees, staff, about the public health or 
danger while working in the park?
    Mr. Grumbles. No. We haven't received any in terms of the 
public health danger. I was just mentioning earlier some 
recreators have mentioned the smell in the past and an officer 
has, of course, mentioned--
    Mr. Rehberg. But none of your employees are worried about 
the health end of it? Hopefully if we asked them, that is the 
answer they would give us.
    Mr. Murphy. I believe so.
    Mr. Rehberg. No further questions, Mr. Chairman.
    Mr. Radanovich [presiding]. Thank you very much. Forgive me 
for running back and forth. Unfortunately, it is a situation I 
can't avoid. I do want to kind of reopen my questions, unless 
you had somebody, Butch.
    Mr. Otter. Yes.
    Mr. Radanovich. Do you want to go ahead?
    Mr. Otter. Yes.
    Mr. Radanovich. OK, go ahead. I will come in.
    Mr. Otter. Mr. Murphy, how long have you been with the 
Parks Department with Interior?
    Mr. Murphy. I came on at the beginning of the Bush 
Administration, on October 4th of last year. I have been here 
that long.
    Mr. Otter. Then that is understandable because all the Park 
Service police reports that we reviewed were prior to your 
arrival there. The answer to Mr. Rehberg's question really is 
during your time you are not aware of any incident report by 
the Park Police, by the National Park Service, that there was 
highly chlorinated water flushed from the reservoir that 
actually overflowed the 6000 block of Broad Street in Bethesda.
    The result was strong enough to sting their eyes and 
throats while standing 30 yards upstream from the outflow. The 
majority of the gas dissipated win about 20 minutes.
    So, obviously, this predates your arrival there. So, your 
answer to Mr. Rehberg officially is that ``not during your time 
there.''
    Mr. Murphy. That's correct. I had stated earlier that I had 
knowledge of that report as told to me by our superintendent, 
but I didn't have first hand knowledge or understanding of 
that. That is the only report that I had awareness of, sir.
    Mr. Otter. I see. I guess God has not given me the power of 
persuasion to convince you folks how frustrating it is for us, 
whether it is the Army Corps of Engineers or the EPA or the 
National Marine Fisheries or whoever that continually seem to 
come in conflict with our way of life in the west and the 
resulting damage or the resulting dislocation.
    Hopefully, though, we can come to some compatible exercise. 
Hopefully, this will result in some sort of compatible, at 
least understanding exercise.
    As I said in my earlier round, perhaps it is because when 
you require a 10-percent reduction out west of a water body 
that is already fairly clean, it is awful tough to get another 
10 percent out of that, more costly to get another 10 percent 
out of that.
    Mr. Grumbles, if that isn't the case, I would like to know, 
you know, why it is the case. I mean is dirty water in the east 
any different than dirty water in the west? If that is the 
case, perhaps, you know, as a result of these hearings, we will 
come to that.
    I should probably, Mr. Chairman and members of the 
Committee that are still left and to you folks as well, offer a 
disclaimer because I have had a pretty good run-in personal on 
my own property with the Army Corps of Engineers, with the EPA, 
and with the Justice Department. I sought to take three old car 
bodies out of a swamp behind my house that became a tremendous 
breeding ground for mosquitos.
    Because I hadn't had all the permits in removing those 
three old automobiles out of a swamp that was about a half 
acre, 6 years later, $167,000 and I can't tell you all of the 
other problems that I had. Finally, I just paid the fine and 
said, ``Here is the $50,000 bucks.''
    Mr. Izzo how much have you paid in fines for your 
violations? That is a rhetorical question, sir. Unfortunately, 
that is one of the things that frustrates us so when our own 
government wouldn't obey its own laws and yet you expect 
private property owners to, you expect municipalities to.
    We have $58 million in highway construction in the State of 
Idaho that cannot go forward. I can tell you what that would do 
to our economy in the State of Idaho, if we had some of these 
problems solved. $58 million in Idaho. $14 billion, it was 
testified to by the Transportation Committee a couple of weeks 
ago, nationwide.
    I already mentioned the lumber mills, the miners and all 
the other dislocations that we have seen.
    Mr. Chairman, I would hope that if you all or any of you 
want to respond to this rambling of mine, I invite you to do 
so. But I would hope that you would see the struggle that we 
are in and the feelings that we have for it. If it is that 
important, and we believe that the species and those that are 
endangered and those that we can help survive, we should.
    But we also want you to know what the human cost has been 
to us. It hasn't been fun to watch a city of 400 people die. I 
mean the city just went away. The school system is lost. And 
the resulting dislocation is folks that for generations have 
called Idaho their home. All of a sudden, they didn't have a 
home. They had to uproot themselves from generations of being 
there, and leave.
    Like I said earlier, I am just without the power of speech 
and persuasion to tell the story, but I would invite you all to 
come and look at the story because it is pretty sad in certain 
areas of Idaho. I have 650,000 people that live, that were 
born, that lived, that recreate, that worked on the watershed.
    Every day, every day that watershed, we get hit right dead 
in the face with the Endangered Species Act and the Clean Water 
Act and we get precious little sympathy from the folks in 
Seattle that never come over and try to explain to those 
people, until their unemployment runs out and they have to 
leave and go someplace else, why they should have to be 
dislocated; why we can't figure out a compatible way to do 
both, as we seem to be able to figure out east of the 
Mississippi River.
    Thank you, Mr. Chairman.
    Mr. Radanovich. Thank you, Mr. Otter.
    I want to draw the attention of the panel to the Institute 
for Regulatory Science study that was done on the assessment of 
water quality studies in the vicinity of the Washington 
Aqueduct and read a statement and talk about the 1994 draft 
permit that was issued. It was a draft permit that was actually 
never issued, thereby allowing the old permit to kind of 
continue indefinitely.
    In this statement on Page 101, at the bottom of the page, 
it does state that, ``None of the information provided for this 
review suggested that the continued discharge of flocculated 
sediment without treatment would be permitted on the Potomac, 
in the Chesapeake Bay watershed, in a National Park, in a 
National Heritage River, in the proximity to an endangered 
species or in EPA Region 3.''
    ``Draft NPDES permits issued in 2000 for water treatment 
facilities in Maine, New Hampshire and Massachusetts require 
routine monitoring of flow, TSS, pH, total residual chlorine, 
aluminum with chronic and acute toxicity testing as requested 
by the EPA.''
    As I understand the draft permit, which may have even been 
done by the former permit writer that was mentioned in the 
press recently, it did have such restrictions in it that would 
preclude the dumping of the sediment into the Potomac River. It 
would in fact shut the treatment facility down or require that 
that treatment be removed in any other way other than by 
dumping it into the river.
    Is that my understanding, Mr. Izzo, if you could comment on 
that? That is why they held of on issuing the new permit in 
1994 in order to study the situation a little more thoroughly?
    Mr. Izzo. I really can't comment on what happened in 1994, 
since I wasn't here. I can tell you that there are numerous 
potential solutions if it was determined that the sediment 
should not be put in the river. These are outlined in the 
report that I attached to my written testimony.
    They include not just trucking out, which you have 
mentioned, but also the construction of discharge lines to 
local treatment plants and so on and so forth. It is a very 
complex problem, so I can understand how the folks in 1994 
maybe did not address it.
    I think our position would be that any significant change 
that would be proposed for the water treatment in the 
Washington Aqueduct for whatever reason would have to be done 
in collaboration with the local users who in the long run have 
to foot the bill. That becomes a very complicated exercise in 
local government.
    Mr. Radanovich. Mr. Grumbles, were you aware of the 
situation in 1984? Are you able to speak to that, given the 
fact that you may not have been there in 1994?
    Mr. Grumbles. I can't add a whole lot of specificity to it. 
I know that there was a draft permit that was written. When I 
saw the article in the paper this morning about a former 
employee making some alleges, I can assure you that is one 
thing that we are going to look very closely at.
    Mr. Radanovich. Well, this is not about a former employee 
and an allegation. This is regarding the statement of the fact 
that in the draft permit that was drafted by the EPA in 1994, 
it had such conditions on it that would preclude the dumping of 
the sediment from the river. In fact the Army Corps would not 
be able to meet those standards, so this sediment would have to 
be disposed of some other way. So, therefore the permit was 
never finalized.
    Mr. Grumbles. I think that was, just based on my previous 
Congressional history and working on the legislation, I think 
that was one of the key factors that triggered the tremendous 
amount of debate in Congress over the future of the Washington 
Aqueduct because of the concern that a draft permit and the 
stringent nature, that it would force some $60 million facility 
to be constructed and the objections raised by some of the 
Congressional interests to that.
    I know that was one of the various aspects that was 
debated. I don't know the details as to why the draft permit 
never got finalized, but I certainly remember that there was, 
based on the concerns over the contents of it, it triggered a 
tremendous amount of debate in the Senate and in the House as 
well..
    I can't really add much more than that, Congressman.
    Mr. Radanovich. Well, let us see, you are engaged in formal 
consultation now with NMFS. We are looking at a maximum of 135 
days before a biological opinion, I think, is established, and 
then based on that you will again discuss the formation of 
another draft permit. Is that my understanding of how this 
thing works?
    Prior to this, and now you have the Department of Interior 
that is weighing and saying, frankly, we don't want this stuff 
being dumped any more. You have a biological opinion that will 
say what it say whenever it is released.
    Is there a chance that the permit will say that the dumping 
of sludge into the Potomac will to this day cease and desist?
    Mr. Grumbles. It is fair to ask the question, Congressman. 
I would feel very constrained in answering it since we are in 
the pre-decisional mode. I mean we have an actual permit out 
there. We are getting public comment. EPA will be the 
decisionmaker on exactly what the contents of the permit will 
be.
    I do feel that I can say that Administrator Whitman has 
tasked us with looking very closely, very carefully at measures 
to significantly reduce the loads of the sediments and to 
continue looking and, and working with our colleagues looking 
at the issues of possibly even pursuing a no-discharge at some 
point.
    Mr. Radanovich. It is within the realm of possibility, it 
sounds like to me.
    Mr. Grumbles. Well, it is just like the 85 reduction 
requirement of the sediments that is in the draft permit right 
now. That is one way to force the co-permittees to look 
seriously at and develop plan and in the process of doing that 
over the next several years, it is possible that a solids 
recovery facility could ultimately be the plan of choice or the 
mechanism of choice.
    As the decisionmaker in the permit right now, we are 
constrained to show one way or the other which direction we are 
in.
    Mr. Radanovich. No, that is certainly being asked of you. I 
just really wanted to know if it is within the realm of 
possibility that you would issue a permit, the result of which 
would terminate the dumping of the sludge in the Potomac.
    Mr. Grumbles. Yes. I think the key thing is, and certainly 
a theme of this hearing has been really trying to focus in on 
what does the science say? What are the scientific data and 
evidence to indicate where we need to be most protective or 
increase the environmental protections and then not prejudge 
our consultation with the National Fisheries Marine Service and 
then working with the other entities, National Park Service on 
additional studies and things like that.
    Mr. Radanovich. Thank you. Thank you very much.
    Mr. Keeney, thank you for your testimony a little earlier. 
I am sorry I have been running back and forth.
    I just wanted to bring up something that you had said 
earlier which may be in disagreement with regard to the equal 
enforcement of the Endangered Species Act east and west. You 
had mentioned the Atlantic salmon. It is my knowledge, you 
might want to look into this or you can correct me if I am 
wrong, but it seems to me that on the issue of enforcement of 
the Endangered Species Act with regard to Atlantic and Pacific 
salmon, that the issue of habitat really makes a big difference 
in how that Act is enforced on both coasts.
    I know in California that the habitat of the Pacific salmon 
is treated by watershed. You have a lot in my area. There is 
one habitat which is the Merced River, which is the drainage 
out of the Yosemite National Park that goes into the San 
Francisco Bay. It is treated separate from the Towallame River 
that also comes out of Yosemite, a different river that dumps 
into San Francisco Bay, but they are treated as separate 
habitats.
    So, the presence of the salmon is determined within the 
river itself, where along the Atlantic seaboard the habitat is 
from Maine to about as far south as you can get. They are not 
treated on a river-by-river basis. The number of species that 
are counted are counted from the entire Atlantic coast. It is 
my knowledge that that is an example of the discrepancy, I 
think of the enforcement of the law in both areas.
    Mr. Keeney. Mr. Chairman, I am just not familiar with 
specifically how it is applied in that regard.
    Mr. Radanovich. I wanted to bring that up because at least 
that is my knowledge of how it is differently enforced.
    Another thing that you might want to look at, too, is the 
disparity of wildlife biologists on the east and the west 
coast. I don't know what the ratio is. It is quite a 
disproportion of wildlife biologists that are assigned. If you 
were to draw a line up and down the Mississippi River, how many 
in the west and the east coast, I think there is a ratio there 
of about eight to two, more biologists, I think, on the west 
coast.
    Perhaps if you had had more biologists on the east coast 
they would have caught this shortnose sturgeon problem a little 
bit earlier.
    My real question is this. I applaud you for entering into 
formal consultation, I think, on this. I guess the issue is the 
same as it would be for Mr. Grumbles. What if, in your 
determination NMFS comes up and does find out that the dumping 
of the sediment in the Potomac River is affecting the 
endangered shortnose sturgeon.
    Is it within the possibility that NMFS will issue an order 
to cease and desist immediately?
    Mr. Keeney. Mr. Chairman, I think it depends on the extent 
of the information that we discover as to whether or not it may 
or to what extent it threatens the continued existence of the 
species.
    As you know, we are continually searching for better 
science on this issue. We have to deal with the best available 
science at the time with regard to our consultations with EPA. 
As you know, we are going to have a biological opinion written 
within 135 days which may shed further light on the importance 
of this habitat for shortnose sturgeon. [The biological opinion 
has been retained in the Committee's official files.]
    Mr. Radanovich. And I know that in some of our discussions, 
it wasn't with you, but with some folks on this issue, it was 
mentioned that even though the habitat around the dumping, 
which occurs on the aqueduct on the Potomac, that there are 
other various inlets along the Potomac that are not affected, 
so therefore there is habitat for the endangered sturgeon.
    Perhaps the sturgeon can live without this particular 
spawning ground and the dumping may be allowed to continue. 
Under my knowledge of the law, the law reads that if the 
habitat of a known endangered species is affected, that the 
habitat must be protected at all costs.
    In fact, it was in the Supreme Court that it would be at 
all costs.
    So, I just would caution you that my knowledge of this 
thing is that if you find out in any way that dumping is--and I 
think you will draw the conclusion that this is a spawning 
ground for the endangered species because that is where fresh 
water meets salt water, that this is a potential habitat for 
that shortnose sturgeon. You are just going to have to cut 
these guys off at the shorts.
    Mr. Keeney. Mr. Chairman, first of all, we are not aware 
that this is a spawning ground for shortnose sturgeon. Again, 
our greatest concern is for activities that threaten the 
continued existence of the species.
    As I also mentioned before, there are examples of cases 
where NOAA Fisheries has allowed the taking of an endangered 
species where it does not threaten the continued existence of 
that species.
    Mr. Radanovich. We have a hearing today at 2 o'clock where 
ESA and NMFS does testify in the presence that if there is 
habitat of an endangered species that we must err on the side 
of the species. I am not understanding why that wouldn't apply 
in this case.
    Mr. Keeney. Certainly it does apply. As Mr. Grumbles 
stated, we are acting under extreme caution here in moving 
ahead with formal consultations despite a lack of proof of the 
presence of the species in this area.
    We believe that this area is good habitat for shortnose 
sturgeon, but we have not found a shortnose sturgeon within 50 
miles of this area.
    Mr. Radanovich. That is because the sludge is being dumped 
into the Potomac. I count up two and two. I don't mean that 
disrespectfully. Please forgive me. It is just that this is an 
important topic for me.
    Again, the way I read the law is that if that area in 
particular is found to be a habitat, then a cease and desist 
must be ordered.
    Mr. Keeney. I don't believe that is the case.
    Mr. Radanovich. Mr. Keeney, in your testimony earlier, you 
mentioned a word, ``extirpate.'' Can you help me with that? 
That is a new term that I have heard.
    Mr. Keeney. ``Extirpate.'' I think it has been found not to 
exist any longer in the area.
    Mr. Radanovich. Can you tell me how that relates to the 
other part of the law that does say that if it is an suspected 
habitat of an endangered species, that the habitat must be 
protected. It seems to me contradictory in terms if you have a 
listed species and a suspected habitat, but they have not been 
spotted--
    Mr. Keeney. I think it is protected, the habitat needs to 
be protected if it is thought that the species could be 
restored in that area and you have evidence that the species is 
in that area.
    Mr. Radanovich. So, since now we know there have been 
sightings of the species, in 1996, I guess, in lower portions 
of the Potomac, it is conceivable that that shortnose sturgeon 
has the possibility of being restored into that bay area and 
this dumping ground is on suspected habitat, it seems to me a 
likely conclusion that you have to protect that habitat.
    Mr. Keeney. It depends on the science and it depends on our 
consultations with EPA.
    Mr. Radanovich. OK. Let me ask one more time. I know that 
you are doing the biological opinion right now, but if you do 
conclude that this is an endangered species, that this is a 
potential habitat of the shortnose sturgeon and the sturgeon 
has the possibility of being revived in that area, that the 
possibility exists that you would issue a cease and desist 
order?
    Mr. Keeney. I am not sure that we have the authority to 
issue a cease and desist.
    Mr. Radanovich. How does that work? Do you recommend to 
DOJ? Is that how that works?
    Mr. Keeney. We do have enforcement attorneys who could 
bring an action under Section 9 to prohibit the Federal action.
    Mr. Radanovich. To stop it?
    Mr. Keeney. To stop it.
    Mr. Radanovich. So, the authority is within NMFS?
    Mr. Keeney. Yes. We would work in conjunction with the 
Justice Department.
    Mr. Radanovich. With the Justice Department. OK, good. 
Thank you very much, Mr. Keeney. I appreciate your input.
    Mr. Otter?
    Mr. Otter. Yes, thank you, Mr. Chairman.
    I would ask Mr. Grumbles, you are familiar with the peer 
review report from the Institute for Regulatory Science?
    Mr. Grumbles. I personally have not read it. I know that 
they issued a report and I know that EPA staff are--
    Mr. Otter. Do you have any idea how you will use the 
information in this peer review.
    Mr. Grumbles. I think we have already. If I am not 
mistaken, there is at least one recommendation; there may be a 
couple in there that we are trying to capture in the draft 
permit conditions. One of those is that the Institute for 
Regulatory As far as recommended that the Washington Aqueduct 
use one of two alternatives for managing the discharge and that 
specifically one was to clean the settling basins more slowly, 
using raw water and to dilute the total suspended solids and 
alum to acceptable levels.
    In the draft permit, we have included a similar requirement 
for the discharges, specifically from the Georgetown Reservoir.
    Mr. Otter. Have you also taken into consideration in the 
Army Corps of Engineers water quality studies in the vicinity 
of the Washington Aqueduct, October 4 of 2001, a couple of 
conclusions.
    ``In summary, there appears to be moderate risks to several 
fish species,'' not necessarily endangered, ``of concern from 
sediment discharges in the project reservoirs when young life 
stages are present. The primary risk is from deposition of the 
suspended sediments on eggs and larvae which could affect 
survival.''
    Going on, ``Presumably, this restriction was incorporated, 
and they are talking about the restriction on time of release, 
to ensure that sediment discharges took place when the natural 
sediment load in the river was very high and dispersion was 
then quicker and the visual impacts would be at their least. On 
a practical basis, these restrictions have meant that 
discharges may take place in the spring when the flow, the 
turbidity requirements are more likely.''
    I suppose so that they look more natural.
    Finally, ``That no sediment discharges be made between 
February 15 and June 15 to protect the important fish spawning 
period.''
    Those things are going to be taken into consideration?
    Mr. Grumbles. Congressman, I appreciate your mentioning 
some of those points. We are working. This public comment 
period continues through June 28th. We are specifically going 
through the RSI recommendation and comments and working on 
that.
    As I mentioned, we have included in the draft permit some 
of the recommendations and been responsive to those points, 
but--
    Mr. Otter. Well, my question goes to that because all of 
these answer one of the probably more open-ended questions 
under the Endangered Species Act that may affect determination, 
which I believe, probably through Mr. Keeney and his 
organizations into the consultations that you are in the middle 
of right now.
    Isn't that a fact? Isn't that the reason that you are in 
the middle of those, because you have a ``may affect'' 
determination?
    Mr. Keeney. That is true.
    Mr. Otter. So, it may affect the habitat, may affect the 
endangered species. Isn't that right?
    Mr. Keeney. Right, the health of the habitat and in 
conjunction with evidence that there are species in the area.
    Mr. Otter. OK. Now, I want to get back to my frustration. 
Now let me get back to my frustration. It didn't happen in my 
district, but I am sure you are familiar with the Klamath Falls 
water problem that they had last year, are you not?
    Mr. Keeney. I am.
    Mr. Otter. How is that dramatically different than what 
happened at Klamath Falls by the National Marine Fishery and by 
the U.S. Fish and Wildlife in the determination that they made 
to seek a cease and desist order? How is that so much different 
than what we are talking about here?
    Mr. Keeney. Well, in the case of Klamath Falls, the Klamath 
River Basin, as you may know on June first NOAA Fisheries 
issued a biological opinion that would allow continued flows 
for farmers in salmon for 4 years, after which a number of 
measures would be required to be implemented to prevent 
jeopardizing the species.
    So, we have been able to work out an agreement there.
    Mr. Otter. How about the period where we took the water 
away from 1400 farmers? They already had their crops in the 
ground and the crops in the ground and the crops went to waste. 
How about the immediate action and the immediate cease and 
desist order that was ordered in Klamath Falls because ``may 
affect determination'' was in force?
    As a result of that, there was considerable economic 
damage.
    Mr. Keeney. All I can say is that it probably relates more 
to the presence of the species in those rivers and the 
knowledge that those rivers were spawning habitat for that 
species. There is a distinction.
    Mr. Otter. You just concluded that because there was so 
many other places, in answer to Mr. Radanovich's question 
relative to other areas for spawning to take place. There are a 
``cajillion'' other places that they could have spawned, other 
than just on the Klamath Falls project. There was one.
    I am sorry to hit you right off the shoulder with this is, 
but I would ask you to look into the similarities between 
action that was taken in Klamath Falls and action that is not 
being taken here under the same determination of ``may affect 
determination.''
    Mr. Keeney. Congressman Otter, we can get back to you with 
a comparison and some thoughtful comments and I will do that.
    Mr. Otter. Thank you.

    [The comparison referred to follows:]

Comparison of the 2001 Klamath River and 2002 Potomac River Biological 
                                Opinions

    In April, 2001, NOAA Fisheries completed a biological opinion 
(BiOp) on the Bureau of Reclamation's (BOR) proposed operation of the 
Klamath Project and the project's effects on a threatened population of 
coho salmon. The BiOp concluded that the proposed operation of the 
water storage and delivery system was likely to jeopardize this 
population of coho salmon, and provided reasonable and prudent 
alternatives (RPAs) to avoid jeopardizing threatened coho. In November, 
2002 NOAA Fisheries completed a BiOp on the effects of discharges from 
the Washington Aqueduct, operated by the Army Corps of Engineers (ACOE) 
and permitted by the Environmental Protection Agency (EPA), on an 
endangered population of shortnose sturgeon. The BiOp found that the 
action was not likely to jeopardize this population of sturgeon.
    These two BiOps differ in their conclusions because of significant 
differences in the biology of coho salmon (assessed in Klamath BiOp) 
and shortnose sturgeon (assessed in Washington Aqueduct BiOp) and based 
on NOAA Fisheries' analysis of the effects of the proposed actions on 
listed species. In summary, the effects of chronic reduced water flows 
in the Klamath River on coho salmon that die after spawning are more 
significant than periodic discharges of sediments on sturgeon that can 
persist and spawn within a river for decades. The differences in the 
conclusions of the two BiOps in question are, therefore, not the result 
of unequal implementation of the ESA, as some have suggested. Rather, 
the BiOps differ because of significant differences in the biology of 
coho salmon and shortnose sturgeon, and differences in the effects of 
the Federal actions on the two species.

What are the Key Biological Differences between Coho Salmon and 
        Shortnose Sturgeon?
    Coho salmon in the Klamath River basin, like other Pacific salmon, 
have a life history that includes spending a number of years at sea 
before returning to natal rivers to spawn. Adults die shortly after 
spawning. Consequently, an adult coho salmon that lives out its 
complete life cycle will spawn only once in its lifetime. Coho salmon 
are very dependent on adequate freshwater habitat for juvenile rearing, 
adult and juvenile migration, and spawning. Coho can be very habitat 
limited in the freshwater environment.
    Shortnose sturgeon, like coho salmon, are migratory. However, 
sturgeon do not die after spawning. Shortnose sturgeon in the 
Chesapeake Bay and its tributaries may live 20 years or more. A 
shortnose sturgeon from the Chesapeake Bay that lives out its complete 
life cycle will likely spawn at least several times, and perhaps more 
than 15 times. This life history strategy provides a natural buffer 
against environmental variability and unsuccessful spawning years. It 
allows shortnose sturgeon populations to withstand an occasional year 
of low reproductive output without jeopardizing the population.

What are the Key Differences in Effects of the Federal Actions?
    In the Klamath River, the BiOp assessed water management practices 
which would result in a significant reduction in habitat quantity and 
quality for coho salmon. Specific concerns included maintaining 
adequate habitat space and water temperatures. NOAA Fisheries found 
that the minimum flow requirements in BOR's 2001 water management plan 
were inadequate. NOAA Fisheries determined that the flow schedule 
proposed in BOR's biological assessment would result in a reduction in 
habitat quantity and quality compared with the average operations of 
the project during the 1990s. In NOAA Fisheries' view, this water 
management strategy suffered from the same flaw as BOR's 2001 
biological assessment which the National Research Council (NRC) 
concluded exposed threatened coho salmon to new levels of risk and was 
not scientifically justifiable. Given the life history of coho salmon 
and the findings of the NRC, NOAA Fisheries found that the water 
management plan was likely to jeopardize the continued existence of the 
species. NOAA Fisheries recommended higher flows to avoid jeopardy. BOR 
managed the Project to meet those flows.
    In the Potomac River, the BiOp assessed the effects of periodic 
discharges of sediment into the Potomac River near Little Falls, where 
shortnose sturgeon are presumed to spawn. One of NOAA Fisheries' two 
major concerns was that discharges from the Aqueduct could be toxic to 
shortnose sturgeon. A toxicology study of discharges concluded that 
there were few toxicological effects on test organisms. NOAA Fisheries 
concluded that, given the short duration of the pulse of sediments, the 
potential toxicological impacts were unlikely to jeopardize shortnose 
sturgeon. NOAA Fisheries' second major concern was that discharges 
during the spring spawning season could smother sturgeon eggs and 
larvae. NOAA Fisheries worked closely with EPA and ALOE during the 
early, ``informal'' stage of the consultation to address this concern. 
EPA and ACOE agreed to prohibit discharges during the spring spawning 
season to avoid potential smothering effects. The only exception would 
be under certain emergency situations, and would occur no more than 
once during the 5-year duration of the permit. Given the life history 
of shortnose sturgeon, and given that other rivers in the Chesapeake 
Bay appear to have suitable spawning habitat for sturgeon, one 
discharge in the Potomac River in 5 years is not likely to jeopardize 
the continued existence of this sturgeon population.

How have BOR and EPA Responded During the Consultations?
    Another distinction between the consultations on the Klamath and 
Potomac Rivers is how each Federal action agency responded to NOAA 
Fisheries' recommendations to protect ESA listed species. In each case, 
NOAA Fisheries found that actions proposed by the BOR and EPA ``may 
affect'' ESA listed species, thereby triggering a consultation under 
section 7 of the ESA. NOAA Fisheries and BOR have consulted multiple 
times on BOR's operation of the Klamath Project. In each instance, BOR 
has proposed to allow minimum flows below those recommended in NOAA 
Fisheries' previous BiOps. Consequently, NOAA Fisheries have issued a 
series of ``jeopardy'' BiOps for proposed annual operating plans for 
the Klamath Project. In contrast, EPA and ACOE worked with NOAA 
Fisheries during the ``informal consultation'' process to minimize 
negative effects from discharges in the Potomac River on shortnose 
sturgeon. Specifically, EPA agreed to alter the permit authorizing 
discharges from the Washington Aqueduct into the Potomac River to 
prohibit discharges during the spring spawning season, significantly 
reducing the threat to shortnose sturgeon.
                                 ______
                                 
    Mr. Radanovich. I have just a couple more questions and 
then we will wrap this thing up. Mr. Izzo, if you could help me 
out with something, there hearings been an issue or a question 
of whether or not the Army Corps of Engineers was in compliance 
with State and district water guidelines at any particular 
time.
    I know that the Corps has testified that they have always 
been in compliance. But we have also got receipts and 
documents, statements from EPA, I think in 1993, and in 
Maryland in 2001 when you were indeed in violation. Can you 
explain that for me?
    Mr. Izzo. Well, first, sir, I think we provided you a 
letter, at Mr. Parker did, back in February where we addressed 
all those concerns. We would like to stand by that letter.
    The only notice of violation that we have received for the 
NPDES permit was in December 1993 at the plant drain. But that 
was not related to sediment discharge. That was related to 
another water discharge.
    Mr. Radanovich. It was chlorine discharge, I think.
    Mr. Izzo. Chlorine discharge, yes. I don't believe it had 
anything to do with the sediment process. There was no penalty 
and I believe the Washington Aqueduct took effective remedial 
action for that. That has been taken care of a long time. I am 
not aware of another formal notice of violation. But I believe 
our letter addressed the concerns which you raised previously 
based on our previous testimony here.
    Mr. Radanovich. Are you aware of the 1993 EPA violation 
that was issued? Mr. Grumbles, are you aware of that one?
    Mr. Grumbles. The plant drain violation?
    Mr. Radanovich. To my knowledge there was notice of a 
violation, but I don't know what it was.
    Mr. Grumbles. I am not personally aware of it. I understand 
that there is a situation where rather than EPA is the permit 
authority, the State of Maryland is the permit authority. Is 
this related to that? Yes.
    Mr. Radanovich. No. The 1993 was a residual discharge 
violation. It was issued by the EPA. In 2001, it was Maryland 
and it was the chlorine discharge that was five times the legal 
limit in Maryland. To your knowledge, that has been addressed? 
Have you been monitoring it so it just doesn't occur again?
    Mr. Izzo. I have not personally been monitoring it, but 
that has been reported to me, that it has been taken care of 
and it is not a problem.
    Mr. Radanovich. Butch, do you have any questions?
    Mr. Otter. No, thank you, Mr. Chairman.
    Mr. Radanovich. I want to thank everybody for being here. 
Again, I would just state in closing that I am glad that the 
process is proceeding so we can take a look and find out the 
environmental effects of this thing. I am amazed that we are 
not on our way to a facility, but I think that is going to be 
the result.
    I thank you very much for being here today.
    [Whereupon, at 12:57 p.m., the Committee was adjourned.]

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